8 Key excerpts on "US Tort Law"

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  eBook - ePub

  Sourcebook on Tort Law 2/e

  • Graham Stephenson, Graham Stephenson(Authors)
  • 2012(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  CHAPTER 1

  INTRODUCTION

  Individuals, businesses and other organisations in a complex post-industrial society suffer losses of various kinds as a result of the activities of others. Tort law is one of the areas of law primarily concerned with the question of whether these losses are to be compensated for by the person responsible for the relevant activity or whether the loss must lie where it falls, namely, with the victim. The other major area dealing with similar issues is the law of contract. Tort law is, to a lesser extent, also concerned with preventing or deterring certain types of conduct. An action in tort is a civil action, as opposed to a criminal prosecution, and is initiated by an individual, business or other organisation, rather than by the State as is usually the case in a criminal matter. An action, in normal circumstances, will be brought in tort to obtain damages, monetary compensation, for some loss sustained by the victim, for example, personal injury, damage to or loss of property, damage to economic interests or loss of reputation.

  The word ‘tort’ is French for ‘wrong’, and we can therefore say that a tort is a civil wrong. Tort law comprises the rules of liability which dictate whether the defendant's activity constitutes a civil wrong, thus enabling the court to grant a remedy, that is, compensation to the claimant victim. This seems straightforward enough but there are obvious difficulties with the explanation of what is tort law in view of the diverse nature of the causes of action which appear to fall within its scope. It is common in an introduction of this kind to discuss the issue of whether there is a law of tort or torts. The search for some unifying factor underlying all causes of action in tort, thus enabling us to distinguish between tort actions and other types of action, for example, actions for breach of contract, would appear to be a vain one. Indeed, the fragmentary nature of tort law would seem to militate strongly against discovery of any such principle. It might, therefore, be more appropriate to talk of a law of torts, a rather loose collection of random causes of action, a residual category of civil wrongs falling outside and independent of the law of contract, the other major source of civil wrongs. If this view is taken, it must nonetheless be acknowledged that the major part of the area covered in this and other books on tort law is within the scope of one single tort, that is, negligence, but by the same token, it has to be recognised that there are other causes of action, totally independent of negligence, with their own specialised rules of liability which clearly fall within the subject matter of tort law.

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  Understanding the Law for Physicians, Healthcare Professionals, and Scientists

  A Primer on the Operations of the Law and the Legal System

  • Marshall S. Shapo(Author)
  • 2018(Publication Date)
  • Productivity Press

    (Publisher)

  5 Tort Law Generally

  Tort law is a body of law that looms large in the minds of medical professionals, others engaged in risky activities, and makers and sellers of products that present some degree of danger to consumers and others who may encounter those products.

  5.1 Defining Tort

  Tort can be defined with varying degrees of abstractness. Tort law is the body of law that governs actions for injuries claimed to be caused by behavior that is wrongful or otherwise regarded as unjust if it causes injury. Torts involve invasions of personal physical and mental security, interests in property, and some other kinds of economic interests. A convenient dividing line in law is the one between tort—which signifies injuries that occur when a claimant has had no opportunity to bargain on exposure to risk—and contract, where the parties make an agreement that at least in some sense covers risks. These two compartments are not airtight—sometimes tort law applies to cases that are partly covered by some kind of contract.

  When I say that text covers behavior that is “wrongful or otherwise regarded as unjust,” I note that there is a spectrum of liability theories that span a range of culpability and can even include liability without fault. At the most culpable end of this spectrum are “intentional” torts, a category that has been expanded to include not only conduct that has a desire or purpose to injure but in which the defendant is shown to have “knowledge of substantial certainty” that the injurious result will occur. Next down the spectrum are categories labeled “willful and wanton” conduct or reckless behavior. A shade less culpable is “gross negligence.” The most quantitatively important tort category is negligence. This tort has been defined in a dozen or more ways. The simplest kinds of definitions are those that speak of exposing “others to an unreasonable risk of harm” or a “failure to exercise reasonable care under the circumstances.” At the other end of the spectrum are doctrines of strict liability, which have been employed to impose liability in two major categories: Activities that are “abnormally dangerous” and products that are sold in “a defective condition unreasonably dangerous to the user.”

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  American Law and Legal Systems

  • James V. Calvi, Susan Coleman(Authors)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  CHAPTER 10 Torts

  A tort is a private, or civil, wrong in which the defendant’s actions cause injury to a person or to property. Tort law provides redress for wrongs between individuals, while criminal law seeks to punish offenses against the public at large. A tort lawsuit involves only the persons involved in the tort; the state is neutral in regard to the outcome (unless, of course, the state is a party to the lawsuit). There are elementary dissimilarities between torts and crimes: (1) in the civil action of tort the injured person himself or herself initiates and maintains the lawsuit, whereas in criminal trials the State prosecutes, and (2) the goal of each differs. Criminal law seeks to prevent wrongdoing and to punish the miscreant (by incarceration and/or fine), while tort law aims to place the victim in the same position he or she would have been in if the tort had not occurred (by assessment of monetary damages).

  The same act often spawns both civil and criminal sanctions. Suppose that you are loitering in the hall before class when, without provocation, Joe suddenly comes up and hits you in the face. Joe is subject to criminal sanctions for this attack. However, you will also wish to file a tort action against Joe to recover money to pay for your new front teeth, your dentist’s bill, your pain and suffering, and your mental anguish. The purposes of the two suits, which will be heard separately, are different. Society is punishing Joe for his antisocial behavior in the criminal trial, while you are seeking money from him. The usual remedy for tort liability is monetary reimbursement for the harm suffered.1

  Tort law is fluid; it changes as society’s values shift. Today, new torts are being recognized where no cause of action had previously existed, and the boundaries of tort liability are constantly in flux. One example is the growing recognition of the legal system that animals “have an intrinsic value beyond mere property, because of the bond between pets and their owners. [An] Oregon jury ordered a man who intentionally ran over a neighbor’s dog to pay $56,400 in damages, far more than the fair market value of the animal.”2 Generally, only the actor is held civilly liable for the consequences of that act. However, juries have determined that the gun dealers who sell guns and ammunition to intoxicated buyers, underage purchasers, or those exhibiting signs of mental instability violate affirmative common law duties to conduct their business to prevent sales of firearms to high-risk people. This liability has been imposed even without a statutory violation or on the principles of negligence (both of which will be discussed later in this chapter).3

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  Galbraith's Construction and Land Management Law for Students

  • Carrie de Silva, Jennifer Charlson, Carrie de Silva, Jennifer Charlson, Carrie de Silva, Jennifer Charlson(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  10 The law of tort Carrie de Silva

  Introduction

  The basis of liability in tort is probably one of the most difficult legal ideas for the layperson to grasp. The word itself is of French origin and means a ‘wrong’. Simply, the law of tort applies where the behaviour of one party causes, or threatens to cause, harm to the interests of another party. The rules of the law of tort determine when one party can be compensated for the behaviour of another. Tort is limited in its scope and, although new torts do evolve from time to time, there is not necessarily a legal remedy for every wrong suffered. A claimant will only succeed in an action if he or she can show that the defendant’s behaviour falls into a specified situation covered by the law of tort. Those specified situations are then given identifying names such as the tort of defamation, the tort of nuisance, the tort of negligence and the tort of trespass.

  Much of the law of tort has developed through judicial precedent although some of the rules are now statutory, for example, the Law Reform (Contributory Negligence) Act 1945, the Occupiers’ Liability Acts of 1957 and 1984 and the Torts (Interference with Goods) Act 1977. But case law continues to play a significant role in the development of tortious principles. Case law allows the rules to operate flexibly and to be applied to widely differing situations. The cost of that flexibility will sometimes be a lack of certainty and it can sometimes be difficult to say, with any precision, whether liability will arise.

  Compensating claimants under the law of tort is long-established in our legal system, with remedies for personal injury dating back to the Anglo-Saxons and trespass cases certainly from the thirteenth century. The earliest forms of tort usually gave protection to the person or to property (whether land or chattels), where the injury or damage which had been inflicted was direct. As society became more sophisticated, the law of tort developed to give protection against less direct forms of harm. Torts such as negligence and the torts designed to protect economic interests then evolved.

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  Essential GCSE Law

  • Kenny Chin(Author)
  • 2014(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  5  Tort Law

  You should be familiar with the following areas:

  •    the nature of tortious liability, strict liability and actionable per se tort

  •    liability of an employer for torts committed by employees

  •    general defences and remedies

  •    understanding the various concepts in negligence

  •    various types of trespass and their specific defences and remedies

  •    nuisance and its comparison with trespass

  •    defamation, its forms and specific defences

  The nature of tortious liability

  Torts are civil wrongs other than breach of contract or trust. As with contract, tort is classified as the law of obligation. Contractual obligations arise when an agreement is reached. For tort, there is no term agreed beforehand, however, these are rights, personal or on property, recognised and protected by law. These are our obligations, when living together with others in the society, to take reasonable care and not to intentionally harm others when we conduct our businesses.

  Torts include:

  • Negligence – carelessness causing physical harm or damage to others.
  • Trespass to person – interference with another possibly causing physical harm.
  • Defamation – damage to another’s reputation.
  • Trespass to land/nuisance – interference with another’s interest in land.
  • Trespass to goods – interference with another’s interest in goods.

  Other examples of tort include infringements of others’ copyrights, patents and other intellectual properties. These are all actions which arise, not from contracts, but from obligations imposed on us by the operation of the law. There are overlaps between tort and crime, for example, assault and battery, both of which are concerned with acts that harm others. One main difference between tort and crime is their objectives. Crimes are conducts which are so undesirable that the law prohibits them. Torts cause damage to others so laws are created to provide compensation to the victims. When a dangerous machine is not fenced, it is a criminal offence. When the machine injures a person, he can sue for compensation.

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  Beginning Business Law

  • Chris Monaghan(Author)
  • 2015(Publication Date)
  • Routledge

    (Publisher)

  Chapter 5

  Tort law

  LEARNING OBJECTIVES

  After reading this chapter, you should be able to:

  • understand the distinction between the obligations imposed by contract law and tort law;

  • appreciate how the law of torts affects businesses and how a business can be vicariously liable for the acts or omissions of its employees;

  • comprehend how liability will arise in the tort of negligence and which types of loss will generally not be recoverable;

  • understand how different torts protect a business’s property, its reputation and the contracts that it enters into.

  INTRODUCTION

  In this chapter we will consider the impact of tort law or the law of torts on a business (Figure 5.1 ). A tort is a civil wrong and the common law and statute impose duties on individuals and businesses to avoid breaching a duty owed to another. Tort law is important as a business will be vicariously liable for the acts and omissions of its employees and will need to be aware that an employee who drives the company’s lorry negligently, or who posts offensive comments about a rival business on his employer’s website could result in the business being liable.

  How is tort law different from contract law?

  The difference between tort law and contract law is that in tort legal obligations arise irrespective of whether there is a contract between the claimant and defendant. This means that in contract law the parties will voluntarily contract and accept their obligations, whereas in tort the law imposes obligations that will be owed to others regardless of whether they have consented to them. That is not to say that the parties to a contract will have complete freedom to determine the extent of their obligations, as the law has restricted the freedom of contract by introducing rules on the validity of certain terms and by introducing mandatory obligations for particular types of contracts. The law of tort has developed to establish that a duty of care will be owed in different circumstances and seeks to regulate our conduct by imposing an obligation to avoid causing others loss. You will see how the different torts arise and how a business will need to understand first its legal obligations and thus try to avoid liability, and second the protection that is afforded to it by tort law.

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  The Legal Rights and Responsibilities of Teachers

  Issues of Employment and Instruction

  • Allan G. Osborne, Charles Russo(Authors)
  • 2011(Publication Date)
  • Corwin

    (Publisher)

  This chapter reviews the different types of torts and the standard of care that teachers must exercise to avoid liability. The chapter begins with the definition of a tort and descriptions of the various types of torts before examining the intentional torts of assault, battery, false imprisonment, and defamation. The chapter proceeds with discussions of negligence, the standard of care expected of educators, the elements of negligence charges, how to avoid negligence, and the various defenses to charges of negligence. The chapter rounds out with information on educational malpractice and civil rights torts. As with previous chapters in this book, it ends with a summary of major points and a list of frequently asked questions.

  DEFINITIONS AND TYPES OF TORTS

  Torts are civil, as opposed to criminal, wrongs or injuries, other than breaches of contracts, for which courts provide remedies, generally in the form of monetary damages. The word tort is derived from the Latin and Old French words for twisted . There are essentially four types of torts: intentional torts, negligence, products liability, and constitutional torts.

  Torts are civil, as opposed to criminal, wrongs or injuries, other than breaches of contracts, for which courts provide remedies, generally in the form of monetary damages.

  Intentional torts, as the term implies, occur when individuals purposefully violate the rights of others and cause them harm. Negligence, on the other hand, involves unintentional behavior, such as when students are injured because those responsible for their care failed to properly fulfill their duties. Educational malpractice takes place when teachers fail to provide proper instruction. Products liability, which is beyond the scope of this book because it has little impact on the professional activities of teachers, deals with injuries that buyers, users, or bystanders suffer as a result of defective products. Finally, constitutional torts arise when those responsible acted to intentionally discriminate, with deliberate indifference, or with gross misjudgment with regards to the civil rights of others.

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  English, French & German Comparative Law

  • Raymond Youngs(Author)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  138 The former are human rights and are a matter of public law; the latter are rights under the civil law and are a matter of private law. The former tend to be protected by compulsory law and the latter, by voluntary law.

  Unfortunately, it is difficult to draw any proper distinction between them. One human right is the right to property, and yet property itself can be freely acquired and sold. In original theory, human rights were only exercisable against the state, but now they influence civil law as well.

  Because of the superior status of human rights (they may override democratic legislation), there is a tendency for individuals and pressure groups to argue that further rights that they desire should be included in them. Human rights then become a vehicle for a political programme. This can be dangerous: political debate may be circumvented, and the general consensus of support that core human rights should enjoy amongst the population may be destroyed.

  E Civil law

  The only part of civil law with which this book deals is the law of obligations. This subject can be divided into three major parts: the law of tort (or delict); the law of contract; and the law of restitution. Restitution is not dealt with in this book.

  1 England

  The law of tort developed, as we shall see, from a number of different categories of claim permitted in the Middle Ages. It was from one of these that the law of contract grew.

  2 France

  French law distinguishes between obligations that arise from legal acts (actes juridiques ), such as contracts, and legal facts (faits juridiques ), such as torts.

  3 Germany

  Obligations are divided into those that arise from a legal transaction (Rechtsgeschäft ), which might be a contract, but it could equally be a one- sided transaction such as the making of a will setting out how the property of the person making it is to be disposed of on death, and those that arise from law, such as tort and unjustified enrichment, which is similar to restitution.

  Comment

  This is a classic example of the difference in nature between the three systems. English law grew historically and rather illogically. French and German law are systematic in their approach, but German law is more so: the concept of a legal transaction is very general in nature, and several other parts of the BGB

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