A tort is a civil breach committed against another in which the
injured party can sue for damages. In personal injury cases, the injured party
will attempt to receive compensation with the representation of a personal injury
lawyer in order to recover from damages incurred. Tort law decides whether
a person should be held legally responsible for injury against another, and
what type of compensation the injured party is entitled to. There are four
elements to tort law: duty, breach of duty, causation, and injury. In order to
claim damages, there must be a breach in the duty of the defendant towards the
plaintiff, which results in an injury. The three main types of torts are
negligence, strict liability (product liability), and
intentional torts.
Intentional
Interference with a Person
All tortious
charges of intentional interference with person/property involve intent, which
provides for a civil wrong, knowingly committed by the offender. This
contrasts with torts of negligence, which results from lack of concern or
responsibility on behalf of the offender.These damages are dealt with through
civil litigation.
Defenses
to Intentional Interference with Persons
When a
plaintiff accuses a defendant of an intentional tort, it is the defendant's
responsibility to identify any justifications for his actions that may excuse
him from liability. In tort law, there are several privileges that a defendant
may apprehend, in order to avoid liability. It is up to the courts to determine
whether the defendant's privilege excuses him from liability. They need to
conclude on whether the defendant had consent, permission by the plaintiff, or
whether the plaintiff was defending himself, his property, or another person.
If the defendant is able to establish privilege, then it is said that he has
not committed a tortious act and will not be held liable.
Negligence:
Standard of Conduct
There are
certain elements that are required to prove that a defendant acted negligently.
There is a specific code of conduct which all people are expected to follow and
there is a duty of the public to act in a certain way, which reduces the risk
of harm to others. Negligence can only be claimed by an injured plaintiff,
whose interests have actually been interfered with. This portrays that a
plaintiff must prove his injuries, and prove that they were caused by the defendant.
This proximate cause is the link between the defendant's actions and the
plaintiff's injuries. There is a statute of limitations in negligence cases,
however, there are several rules, such as discovery and continuing negligence,
which may excuse a plaintiff from the statute of limitations.
Negligence
Proof
The necessity
for a negligence case to be tried in a court of law is essential and evident.
Tort law, like any other law, is tough to decide upon when an enforcement or
violation issue arises, and is furthermore tedious. In negligence cases, a
court appoints a jury to make a decision upon a case based on the direct or
circumstantial evidence that is available to them. The burden of proof a
plaintiff faces in a case, relates to four elements of proof that must exist in
order for them to be able to prove that a negligent act not only existed, but
the fact that the act by a defendant, led to the injury sustained by the
plaintiff.
Proximate
Cause
The name
given to the direct cause of an accident, or incident leading to injury, is
referred to as 'proximate'. The term proximate has long been known to mean
near, or in the vicinity of, not actual. This gives a misconception to the
name, as if the cause was nearly opposed to the actual one. Other issues arise deeper
within proximate cause, and that is with the scope of liability and its extent.
Controversy exists as to where liability should be extended to a defendant,
based on their responsibility or duty.
Joint
Tortfeasors
Joint
tortfeasors, seen as equally liable for the committing of a tort, usually can
be combined under one indictment. This is known as a "joinder of
defendants". In a case similar to this, one significant reasoning behind
its institution besides the commonality that the defendants share in their
joint action, is that of "judicial economy." In reference to this
term, the court is making the decision that placing all defendants under one
sole indictment will be the most appropriate option in terms of efficiency and,
ultimately, cost-effectiveness for the judicial system itself. Due to the
mounting quantities of cases arising daily, this practice is employed as a
worthwhile alternative, especially when an occasion such as that of joint
tortfeasors comes about.
Limited
Duty
In legal
terms, duty is seen as an individuals obligation to act in a manner conducive
to the well being of everyone around them, such as the prevention of any
"foreseeable injury to a victim." Such a term that best represents
this obligation is that of a "duty of care", or even "good
Samaritan" to an extent. Duty, itself, serves two other important
functions for societal concerns attached to tort law. These include a
"general principle" and a "limitation." A general principle
provides a precedence for future cases, while limitation sets forth the
"boundaries" for which liability may exist for individuals involved
in an incident. Actual application of this term comes in the form of its
existence at the "abstract level" and "in fact or problem".
Owners
& Occupiers
The concerns
for areas outside of the premises of a given property deal with the condition
of such a property. This is in direct regards to certain factors and attributes
such as structural or fixtures on the property that could have an effect on the
immediate areas surrounding it. The term trespassing adults refers to any
person who has been found to be entering, occupying, or traveling through a
property that is owned by someone else, without their permission or consent.
Licensees are persons that are given a license, as a form of permission, to
enter a property lawfully. Such persons are to enter the property for a reason
that does not have to be in the best interest or benefit of the owner. By being
granted the license to enter and occupy such property, this individual is
exempt from trespassing status, and is completely abiding by the law.
Negligence-
Defenses
Contributory
negligence is one of the most commonly used negligence defenses. The defendant
attempts to deny the plaintiff the right to action, by claiming that the
plaintiff's own negligence played a large role in his injuries. In contributory
negligence, both parties are guilty of negligence, but the plaintiff is not
awarded any damages. The last clear chance rule is an exception to the
contributory negligence defense which permits the plaintiff more freedom in
taking action against a defendant when the plaintiff is also guilty of
negligence. The last clear chance refers to an instance where the defendant had
the last clear chance to avoid injuring the plaintiff, but did not take the
opportunity. In cases where both the plaintiff and the defendant are both
guilty of some degree of negligence, contributory negligence places liability
solely on the plaintiff.
Imputed
Negligence
Vicarious
liability represents a venue in which individuals may be
"vicariously" held accountable for the actions of individuals other
than themselves. In these cases, the ones held liable are those who have some
type of legal claim to the actual individuals at fault. Two such persons may be
parents to mischievous children or employers to careless employees, as well as
a guardian. In each circumstance, the liable individuals are taking the place
of others. A joint enterprise is described as an action, which involves two or
more individuals, usually with monetary considerations involved. Additional
elements which comprise it include a common goal as well as concurrent rights
to take the lead of the operation.
Strict
Liability
The basic
structure that encompasses that of strict liability is the fact that liability
is maintained despite any intent otherwise. In this way, it matters only that
the action was performed to its fruition and an eventual injury of another.
Certain areas in which safety laws have had to come to the forefront concerning
liability include incidents involving product defects. In cases such as these,
consumers must only prove that their injuries stemmed directly from the product
in question in order to garner an appropriate judgment from the court. The
purpose behind such a seemingly rigid form of legislature is to prevent future
occurrences from happening by providing precedence to fall in line with.
Compensation
Systems
In tort
cases, victims often receive compensation, including monetary judgments.
However, some judgments include other factors such as: the accused, publicly
admitting guilt. In most jurisdictions, the courts have placed limits, or
judgment ranges, which depend on specific factors found in the case. In most
cases, victims that sustain injuries receive a judgment which maxes out,
regardless of how painful and permanent the injury may be. However, the courts
can award other judgments, in addition to the one made for specific bodily
injury.
Nuisance
In modern
tort law there are different types of nuisances: public, private, and absolute.
A private nuisance effects one individuals enjoyment of his land, while a
public nuisance effects a larger amount of citizens, or the public in general.
Absolute nuisances are nuisances for which the defendant is strictly liable. The
simple form of nuisance is described as an act which takes away from rights to
the use, and enjoyment of land that every owner has.
Products
Liability
Products
Liability is a field of tort law which concerns the responsibility of the
manufacturer or vendor of a product to ensure that products are safe and do not
cause injury. Products subjected to liability include all consumer goods,
medical devices, commercial/personal vehicles, aircraft and consumable goods
such as food and prescription drugs. As it is the duty of a product vendor or
manufacturer to produce/supply a product which will not cause harm during
normal use, manufacturer/vendors of unsafe products are subject to recovery for
damages.
Misrepresentation
& Nondisclosure
Misrepresentation
and nondisclosure form two fundamental bases for many actions represented under
tort law. Any case where false or hidden information plays a significant part,
essentially implies a standard of care that reflects the negligence addressed
by tort.
To phrase it
more simply, the fact that information has been withheld or misrepresented
directly implies a negligent situation. This means that among the various
subsections of tort law, cases of misrepresentation and nondisclosure can prove
to be the easiest to form a legal consensus of opinion on whether negligence
has happened, due to the very idea that the act itself is a negligent
action.
Misrepresentation
and nondisclosure can take many forms, but generally they refer to an act or
service. they are usually rendered for compensation that do not fulfill their
terms of promise, either because they misrepresent their ability to perform, or
fail to disclose elements that prevent adequate performance (like a unknown
side effect for a product, or a conflict of interest in a case of service).
There are
many remedies one may seek when a case of misrepresentation can be seen to have
occurred, though the extent to which they fall under tort law or other forms of
legal action are highly dependent on the specific legal system, as well as the
nature of the misrepresentation. In nearly all cases, there is an
obligation on the provider of a product or service to provide information
either by law, or by request, so as to adhere to all legal standards of
accurate representation.
Defamation
The term
defamation refers to an abusive attack on a person's character or to make false
claims against someone in order to damage their good name. There are two forms
of defamation that can be used: libel and slander. An unreasonable person may abuse
the right of privilege in order to commit defamation against another person.
The right of privilege (or "qualified privilege") being that a
person has a right to make statements during the trial process. This privilege
often protects against an unreasonable person who wishes to make defamation
statements.
Misuse
of Legal Procedure
Misuse of
Legal Procedure is a series of torts that involve the corrupt or undue filing
of litigation for unlawful reasons. Public right of access to courts is granted
on good faith that claimants will act with probable cause and honesty.
Conversely, when a plaintiff in a lawsuit is found to have initiated legal
action for purposes of deliberate harassment or inconvenience of the defendant,
or when the court terminates the suit in favor of the defense, the defense may
seek damage compensation for losses incurred in the legal process. These losses
may be qualified under charges of Malicious Prosecution, Wrongful Civil
Proceedings or Abuse of Process.
Domestic
Relations
Domestic
Relations is an evolving area of Tort Law which deals with a family's inner
workings. The evolution of Domestic Relations Tort has not only shaped the way
that family's may collect for damages or interference to the family unit itself
resulting from tortious conduct; it has shaped the way husbands, wives,
children and legal guardians are viewed as legal entities. Originally, under
common law, children and wives were treated as chattels and functioned under a
man's proprietary rights. In the 1900's, several advances in Family Law
provided for the legal rights of women and children to act as distinct legal
entities from their husbands/fathers.
Survival
& Wrongful Death
Survival and Wrongful Death are tort claims made after the death of an individual in an
at-fault situation. This means that the deceased must be victim of a tort,
before death or at the time of death. Survival actions are raised by the
executives of the victim's estate, and are continuations of tort actions that
the victim would have been entitled to raise in life. Wrongful death claims are
made by surviving dependent's for the loss of the decedent's contributions to
their lives.
Economic
Relations
Torts of
Economic Relations are allegations of direct interference with business
relationships, agreements, or prospects, which result in quantifiable losses.
When suing for Torts of Economic Relations, it is important that the plaintiff
be able to prove that the defendant acted intentionally with knowledge of his
or her own actions, and that the subsequent actions were injurious to the
claimant in the form of economic losses. Torts of Economic Relations normally
fall under classifications of Interference with Contractual Relations, Interference
with Prospective Advantage or claims of Injurious Falsehood.
Immunities
In tort
cases, there are certain intervening factors which allow individuals immunity,
from their actions. Immunity implies either, that the person could not
understand the risks associated with their actions or that they cannot be held
liable because they were acting on behalf of the government or other entity.
Cases, in which individuals are not likely to understand the possible outcomes
of their actions, include infant immunity or insanity immunity.
Infant
immunity applies to minors that are too young to grasp the consequences of
their actions. In addition, the minor must not have no intent to cause harm to
person or property. It can not be claimed that the minor did not understand the
consequences of their actions, if they intended the negative consequences that
resulted from their actions. Intent can not be present without an understanding
of possible outcomes. In cases that involve infant immunity, the parents or
guardians of the minor, could be held liable for their actions, regardless of
the minors understanding of the possible outcomes of those actions.
Insanity immunity can be utilized as a defense in cases where a
person is deemed insane, or mentally incapable of understanding the possible
outcomes of an action. In cases where insanity immunity is a factor, the
caregiver of the person that acted in manner which caused a negative outcome,
could be held liable in the same manner that a parent or guardian could be liable
for a minor. In either case, the actor and those responsible for the care of
the actor, could both be held liable for the action.
Define Torts
–
A
tort is simply a civil wrong. There are three general types of torts that may
cause injury to another person. In civil law, torts are grounds for lawsuits to
compensate a grieving party for any damages or injuries suffered.
Tort Law: Three
Types of Torts
Torts are wrongdoings
that are done by one party against another. As a result of the wrongdoing, the
injured person may take civil action against the other party. To simplify this,
let's say while walking down the aisle of a grocery store, you slip on a banana
that had fallen from a shelf. You become the plaintiff, or injured party, and the grocery store is considered
the tortfeasor or defendant, the
negligent party.
Simply said, you
would probably take civil action against the grocery store to recoup compensation
for pain, suffering, medical bills and expenses incurred as a result of the
fall. Negligence is just one tort category. There are three general categories
of torts. Regardless of the tort action, three elements must be present:
- Tort feasor,
or defendant, had a duty to act or behave in a certain way.
- Plaintiff
must prove that the behavior demonstrated by the tortfeasor did not
conform to the duty owed to the plaintiff.
- The
plaintiff suffered an injury or loss as a result.
Because torts are
a civil action involving private parties, punishment does not include a fine or
incarceration. The punishment for tortious acts usually involves restoring the
injured party monetarily. Sometimes a court order may force the tortfeasor to
either do or not do something. Think trespassing, defamation or slander. Let's
explore the three types of torts:
- Intentional torts
- Negligence torts
- Strict liability torts
Intentional Torts
An intentional tort is an act that is
intentionally committed against another person with the aim of causing harm.
There are several intentional torts that fall into this category, like assault,
battery, conversion, fraud, false imprisonment, trespassing and invasion of
privacy. Not every injury-producing action is cause for an intentional tort lawsuit.
The court will look at the conduct of the defendant to determine whether the
actions were, in fact, intentional or just mere willful and wanton behavior not specifically meant to cause fear
or injury, but is considered reckless.
Betty Geeslin, a
personal representative of Bill Geeslin in Bill Geeslin v. Kobe Bryant,
is one of those cases. Back in November of 2005, Geeslin and a friend attended
a Lakers/Grizzlies game. The fans held courtside seats for the event. At some
point during the game, famous basketball player Bryant ran to retrieve an
out-of-bounds ball. As he reached for the ball, he lost his footing and fell
atop Geeslin, leaving him with injury to his chest and lungs. After several
days, Geeslin, now home, began experiencing uncomfortable pain in his chest
severe enough to visit an emergency room. Once examined, it was diagnosed that
he suffered a bruising and a crushed lung. He was prescribed several pain
medications and a breathing machine and sent home.
After a few weeks
of home treatment, Geeslin decided to sue Bryant for assault, battery and
infliction of emotional distress. Geeslin claimed that when Kobe attempted to
remove himself from Geeslin's chest, he used extreme force to push away,
causing injury. Geeslin also claimed that he could no longer sleep at night,
suffered anxiety and felt embarrassed by the incident in general.
When the court
analyzed the case, it felt that the elements for tortious behavior were not
present. Specifically, Geeslin assumed the risk of injury by choosing courtside
seats. Bryant in no way intended to cause injury to Geeslin at the time of the
initial fall or as he attempted to return to the court, and a reasonable person
would not conclude that the incident was so seriously traumatic that Geeslin
suffered emotional distress to the degree he claimed. In a motion for
defendant's summary judgment, the court ruled in favor of Bryant.
On a side note,
Geeslin died prior to final judgment and a personal representative maintained
the claim against Bryant until time of final judgment. However, Bryant settled
with the estate out of court for the sum of $75,000 to put a rest to any
further appeals or complaints against him. Our next torts deal with actions
that cause injury that do not have intentional characteristics.
Negligence Torts –
Negligence occurs when a party fails to
demonstrate the kind of care a prudent person would take in the same situation
and an injury results from the action or inaction. There are five elements
necessary to prove a negligence case:
- Defendant
owed a duty of reasonable care.
- Defendant
did not behave in a reasonable manner to demonstrate care.
- Plaintiff
suffered an injury as a result of the defendant's actions or inactions.
- The injury
caused actual damages.
- Proximate
cause, defendant's actions or inactions were the cause of injury.
While these elements seem
repetitive, they are necessary for a negligence case. Let's see what happens in
a comical case involving negligence.
In Byrne v. Boadle (1863),
Byrne was walking down the street when a barrel full of flour fell out of a
window and landed upon him, causing the plaintiff injury. In this case, the
flour shop owed anyone walking on the sidewalk below the window a duty of care.
In other words, a flour barrel should not be in a window where it could fall.
The defendant should have used reasonable care that the flour barrels are
stored in an area of the shop where injury to a passer-by could not possibly
happen. Byrne was injured because of the flour shop's negligence in storing
flour barrels appropriately, leaving the flour shop solely responsible for this
injury. Needless to say, this was a prima
facie case because
the evidence was strong enough on face value to convince a court to rule in
favor of the plaintiff.
Strict Liability
Torts
Cases involving strict liability
are similar to negligence. In these instances, the defendant may be responsible
for damages even if the defendant was not negligent. This may seem
counter-intuitive, but it makes sense. Let's take the dog bite law as an
Q:- What is
tort ? What are its characteristics ?
Answer :-
The
definition of Tort is not exhaustive . Many eminent authors have defined ‘Tort
‘ but a real exhaustive definition of a tort has yet to be found . ‘Tort
‘is a French word meaning wrong . The word ‘tort’ has actually been derived
from the Latin term ‘tortum ‘ which means ‘to twist ‘or ‘wrongful.’ Salmond
defined tort as a civil wrong for which the remedy is a common law action for
unliquidated damages , and which is not exclusively the breach of a contract or
breach of a trust or other merely equitable obligations . The definition given
by Salmond has been adopted in different English cases as well as in section 2
of the Indian Limitation Act which defined tort as a civil wrong which is not
exclusively the breach of a trust .
The five important characteristics of a
tort are as follows :-
1) Civil wrong .
A tort is a civil wrong unlike crime , breach
of contract or breach of trust .
2) Infringement of a right in rem .
Tort is an infringement of right in rem and
not right in personam . A right in rem is a right which is available against
the whole world . As for example , one’s right not to be assaulted or defamed
is a right in rem .
3) Right fixed by law .
The right infringed in tort should not be a
right based on consent of the parties but it should be a right fixed by law .
4) Common Law action .
The remedy available in tort should be a
Common Law action . The Common Law action is also actionable in India .
5) Remedy .
Remedy of a tort should be damages or
compensation in money . But the other remedies such as injunction , restitution
of land , ejectment of trespasser are also available .
Answer :-
Salmond opined that there is no law of tort but merely law of
torts . This meant to say that the law of torts consists of a number of
specific rules prohibiting certain harmful acts . According to this school of
thought there is specific well defined wrongs or there is only a law of torts
and no general law of tort . It is meant that there is a list of acts and
omissions , in certain circumstances which are actionable in a court of law . A
person is entitled to file a suit against only that harm which comes within one
of these categories . As there are specific crimes like theft , forgery ,
dacoity , murder and etc. , this theory says that likewise there are
certain specific torts and all the other wrongs fall outside of this purview .
The law if torts consists of a set
of a neat of pigeon holes , each containing a specific labelled tort . When the
defendant’s wrong does not fit in any of these pigeon holes he is said to have
committed no tort .This theory is also known as pigeon hole theory . Sir
Frederick Pollock strongly supported this theory of pigeon hole.
In the old English case of Allen Vs. Flood , appreciating this
theory of pigeon hole , Court held that every plaintiff must bring his case
under one or the other of the well recognized heads of torts
The
theory of pigeon hole has been criticized by the latter writers . According to
the critics if this theory is accepted then the new categories of liability in
tort would be closed . The Courts would be prevented from recognizing any new
torts . There is not a single ground where the Courts refused plaintiff’s case
on the ground that the case relates to new tort .
In the case of Ashby Vs. White , it has been clearly established
that mere novelty will not prevent a person from suing in tort . In fact ,
Torts are infinitely various and not limited or confined
In the case of Ushaben Tribedi & Another Vs. Bhagyalaxmi Chitra
Mondir & others , the Hon’ble Gujarat High Court observed that it is true
that tort is not defined . Torts are infinitely various and not limited and
confined . The novelty of claim may arise and Court may recognize a novel claim
. India is a country where various religions are followed , and this has to be
kept in mind while evolving a new tort .
