Page 47 Tort: a civil wrong, other than breach of contract, for which the law provides a remedy in the form of a lawsuit for money damages • Talking about the civil law – lawsuits, not putting people in jail or executing them • Breach of contract: area that torts does not generally involve • Civil wrong committed, victim can sue and receives money to compensate for the wrong • Tortus – crooked; twisted A tort involves direct interference with: • Person, or o Generally would involve your body. Example: hitting someone over the head with a lead pipe; battery. o Or a car crash • Property, or o Theft called conversion: asserting possession or control over something that is not yours o Trespassing – also damaging property o Patents and copyrights • Intangible interests o Patents and copyrights are not tangible o Still a tort if you interfere with something that you cannot touch o Defamation: reputation is being damaged, false statements about me. If you lie about me and cause me to be diminished reputation wise then this is a tort o Invasion of privacy: cannot touch privacy but we value our privacy. Only unreasonable invasions of privacy is wrong Tort Liability (responsibility – you are responsible to pay monetary damages) • 1. Intentional Tort: hitting me over the head with a lead pipe. It was intentional, you meant to do it. o If you slandered or defamed me: you have done this intentionally • 2. Negligence: you speed, drink and drive, run red lights, not wearing a seat belt – these are careless. We have these rules for a reason and by not following the rules then you are careless. You aren’t planning on crashing into somebody – even if they didn’t intend to harm you it would still be a liability • 3. Strict Liability: you didn’t intend to harm someone, but you did and you are liable. Regardless of how much care you exercised then you still are liable. Reserve this to the areas ofvery dangerous activities – use of explosives. Not intentional and not negligence but if you harm someone you are still responsible Intentional Torts • A. Assault: intentional act of putting another person in apprehension for his physical safety – Example: pointing a gun at you, you are worried about your physical safety. o 1. Actual, physical contact is not required – I don’t have to pull the trigger as long as I am pointing the gun at you and you are afraid. This is assault. o 2. There must be present, apparent ability to carry out the “threat” – as long as I have present ability to carry out my threat then it is assault (present – the gun is pointed at you). What if the gun is not loaded? This is where apparent comes in – if I am pointing a gun at you even though it isn’t loaded, it still looks like I can pull the trigger and you are still scared. § Felony if you point an object at somebody and they reasonably believe it’s a gun. § Guy came into restaurant with an umbrella – said to a patron “If this weren’t Sunday I would ram this through your guts”. Guy filed a lawsuit for tort of assault. Judge dismissed it because it was Sunday – there was no present, apparent ability because it is Sunday. • THE SAME ACT MAY BE BOTH A TORT AND A CRIME: you can be arrested for a crime and be criminally prosecuted, but you can also be sued for the wrong you committed. o Example: if I shot you and injured you seriously. You can be arrested, prosecuted and maybe found innocent. But you can still be sued and have to pay the victim. Case: OJ Simpson. He was found innocent but the families won 33 million. o Burden of proof is different in civil and criminal courts. o Two separate trials: usually the criminal case goes first then the civil case – different courts, different jury, two different trials • B. Battery: intentional touching of another person without consent or justification – when you get hit with the bullet that is battery. Why would anybody be justified in touching you if you didn’t consent to it? A law enforcement officer would be justified if it was a proper arrest. If not, then he wouldn’t be justified – or use of excessive force. Anther justification wouldbe an emergency because they want to save your life even if you cannot consent. o 1. Consent § a. express – by words ú oral or written – “you have my permission to touch me” ú Example: consent form for surgery § b. implied – by conduct ú look at behavior and draw conclusion that you infer for consent ú Example: on the subway and people are pushing you – you have agreed to this by conduct § c. informed consent – “consent without knowledge is no consent at all”: consent you usually give when you are going to have surgery : the doctor comes in and you talk about the surgery, and you know what is happening. ú But if the doctor doesn’t expressly say the potential consequences and the patient ends up paralyzed that is considered a tort for battery. o Social relationships deal with express and implied consent. Going on a date and somebody putting their arm around someone, then kissing, then sex. At some point some of it is expressed (asked for permission) and at other points people just don’t say no. o A bullet, a thrown knife, saliva, or some other kind of means to touch your body could be an extension of a person and counts as touching another person. Some states even say secondhand smoke is an extension of someone. 4 states have approved tort of battery by secondhand smoke. o Doctor sued for branding UK on a uterus before he removed it during a hysterectomy. Doctor argued: why does it matter, you aren’t keeping it. He also argued that he marked where the cut needed to be with UK instead of an X. He said it was helping the situation by intensively drawing his eye to the mark. She didn’t agree with it. Case was eventually settled – do not know how much for. Settlements are usually confidential. Assault without battery?• Yes. You can have a verbal assault but no battery. You can point a gun but never pull the trigger. Battery without assault? • Yes • Hitting somebody from behind – no assault, but battery • Hitting somebody in their sleep Damages for Intentional Tort Cases – page 48 • 1. Actual – compensatory o Loss of capacity to enjoy life, doctor bills, sheet of loss from insurance company, ten 40 taxes • 2. Punitive –
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