Shareware Overload Trio 2/Shareware Overload Trio Volume 2 (Chestnut CD-ROM).ISO/dir33/1798_r.zip/TORT.LAW

Text File | 1993-12-26 | 14KB | 255 lines

     tort {tohrt}

     Torts are a group of civil wrongs that in some way bring injury
     to persons or property and for which the law provides a remedy
     in the form of an award of a sum of money (money damages). The
     term civil wrong refers to the fact that a suit based on tort
     is not prosecuted by the state in a criminal proceeding but
     rather is initiated by a private party acting as the plaintiff.
     Tort suits are distinguished from those in CONTRACT, in that a
     contract is based on an agreement of the parties, whereas a
     tort is inflicted without the consent and over the objection of
     the complaining party. Torts are a diverse group of wrongful
     acts; some of the more important are ASSAULT AND BATTERY, libel
     and slander (see DEFAMATION), NEGLIGENCE, TRESPASS, false
     imprisonment, and malicious prosecution.

     The origins of tort go back nearly 700 years, almost to the
     dawn of the English COMMON LAW. Originally the functions of
     CRIMINAL LAW--which today provide for a government's punishing
     for wrongful conduct--and of tort law--which provide for a
     private party securing reimbursement for certain wrongs--were
     not distinguished from one another. These have gradually become
     two clearly separate areas of law, but even today some
     laypersons may find them confusing because the same
     act--striking another for example--may give rise to suits both
     in criminal law and in tort. The government has a duty to
     maintain public order and may therefore prosecute and punish
     wrongful conduct; yet a party injured by the wrongful act is
     not compensated for the wrong by the criminal prosecution and
     may therefore sue in tort to recover money damages for the same
     act.

     In earlier times torts were divided according to injury direct
     (termed trespass) or indirect (termed trespass on the case).
     Within the past 150 years this distinction has been abandoned,
     and the primary line of distinction is now based on whether the
     tort is intentional (for instance, battery, assault, false
     imprisonment, and malicious prosecution) or negligent (the tort
     of negligence). These torts will be discussed below, along with
     torts that are not classified according to the presence or
     absence of intent (for instance, defamation, trespass, and
     CONVERSION). INTENTIONAL TORTS

     Battery

     Battery consists of any intentional, unpermitted contact
     inflicted upon another. For intent to be found, it is
     sufficient if the defendant should have realized the act would
     probably cause an unpermitted contact, as when he or she throws
     a brick out the window into the midst of a crowd. The actual
     contact is ordinarily obvious, as when a person strikes another
     with fists or a club, but could include shooting, administering
     poison secretly, or any other form of contact not consented to
     by the victim. Injuries in athletic contests that result from a
     violation of rules intended for the protection of players may
     also constitute battery. Certain unpermitted contacts are
     privileged, meaning that the perpetrator has a right to engage
     in such conduct. Parents have a privilege to discipline their
     children within reason; police have a privilege to use force in
     enforcing the law, and citizens have a privilege to defend
     themselves, their families, or their homes, as long as the
     force used is necessary and within reason.

     Assault

     An assault is essentially an offer, attempt, or threat to
     commit battery. The tort arises only when the perpetrator has
     the present apparent ability to carry out the battery. Making a
     threatening phone call would not constitute an assault because
     the present apparent ability to carry out the battery is
     lacking. In fact, mere words do not constitute an assault. Some
     motion or gesture must be made suggesting that a battery is
     actually about to take place. Assault, like battery, requires
     an intent. No matter how frightening, conduct that is merely
     careless (such as mishandling firearms) will not constitute an
     assault.

     False Imprisonment

     Any intentional, unlawful total restraint will constitute false
     imprisonment. Intent to restrain is essential, but restraint
     need not amount to a physical confinement. A party ordered to
     remain in a store, under threat of physical abuse, while a
     clerk sends for police, is being restrained. Whether this act
     amounts to false imprisonment depends on whether the restraint
     was legally justified under the circumstances. Although intent
     to restrain is essential to this tort, motive is irrelevant.
     Locking a drunk in a closet to prevent him or her from driving
     home would constitute false imprisonment, regardless of the
     laudable motive.

     False arrest is a subcategory of false imprisonment. The term
     false arrest is applied when the restraint is imposed under
     pretense of legal authority that is actually lacking. Police
     may be held liable for false arrest when they arrest without
     the necessary legal authority. Merely arresting a party who
     subsequently is found not guilty of the crime does not
     constitute false arrest.

     Malicious Prosecution

     Malicious prosecution is the remedy for instituting--with the
     intent to injure or harm--criminal proceedings against the
     plaintiff. To prove a case in malicious prosecution, the
     plaintiff must show that he or she was charged with a crime at
     the malicious instigation of the defendant, was tried, and
     found not guilty. Malicious prosecution differs from false
     imprisonment in that the key element in malicious prosecution
     is being wrongfully brought to trial, whereas that of false
     imprisonment is being wrongfully confined.

     NEGLIGENCE

     The rationale behind the tort of negligence is that even though
     an injury may not have been intentional, it nonetheless may be
     blameworthy because the defendant did not use reasonable care
     under the circumstances. On the other hand, before negligence
     may be found, some wrongful act or omission on the part of the
     defendant has to have been made. Unavoidable injuries do occur,
     and even though a plaintiff is injured, if the defendant is in
     no way at fault, he or she is not liable.

     In terms of the frequency of suits brought, negligence is not
     only the most important tort, but it is, with the exception of
     divorce, the most frequent suit of any kind brought in courts
     of record. Automobile accidents are a source of a great deal of
     this litigation, but negligence suits may arise from a variety
     of causes, including airplane and railway accidents, physical
     injury to customers on business premises, the failure of
     physicians or other professionals to meet the standards of
     their calling, and many other situations in which careless
     conduct of one party might cause injury to another.

     The technical requirements for a suit in negligence are a duty
     to exercise care, a breach of that duty, and a proximate cause
     between the breach of the duty and an injury to the plaintiff.

     Usually a duty exists to avoid injuring others, but exceptions
     occur. An individual is usually not under a legal duty to
     maintain land and buildings so that unexpected trespassers will
     be safe. In some instances courts have found no duty on the
     basis that the defendant could not possibly have foreseen that
     his or her act would endanger the plaintiff. In most negligence
     cases, however, the duty of the defendant to avoid injuring the
     plaintiff is reasonably clear.

     The defendant fails to perform his or her duty when he or she
     does not conduct himself or herself as a reasonably prudent
     person in avoiding injury to others. Whether or not the
     defendant has done so is largely a jury question, and the jury,
     in turn, will apply community standards to determine what is
     reasonable conduct. Even though the defendant is found not to
     have acted as a reasonably prudent person, he or she is liable
     for the tort of negligence only if a fairly close
     cause-and-effect relationship exists between the careless
     conduct and the subsequent injury. This cause-and-effect
     relationship is what is meant by the term proximate cause. In
     most cases, the defendant's act was clearly a cause of the
     plaintiff's injury, and only rarely does the outcome of a
     negligence case depend on a question of whether or not a cause
     was sufficiently immediate.

     The final requirement for a negligence suit is that the
     plaintiff be injured. The injury may be to person or property,
     but if to person, the injury must be caused by at least some
     impact. Most cases do not allow damages for purely mental
     distress. (A new tort category of intentional infliction of
     mental suffering, however, has gained increasing recognition in
     recent years.) After concluding that the defendant was liable
     for the plaintiff's injury, the jury determines a sum that will
     fairly compensate the plaintiff and awards this as money
     damages.

     Even though a case in negligence may be established as outlined
     above, the defendant may still defend on the basis of
     contributory negligence or, in some states, comparative
     negligence. Contributory negligence means that the plaintiff's
     own negligence was partly the cause of the injury. If this can
     be shown, the defendant will win, even though he or she was
     much more at fault than the plaintiff.

     Because of the harshness of the contributory negligence
     doctrine in offering a defense in cases where the defendant was
     more negligent than the plaintiff, about half the states have
     substituted in its place the defense of comparative negligence.
     Under this defense, instead of negligence on the part of
     plaintiff completely barring his or her claim, the award to
     plaintiff is diminished in proportion to the amount of his or
     her own negligence, as determined by the jury.

     OTHER TORTS

         Defamation

     Injury to reputation is protected by the tort of defamation,
     which is really two closely related torts, libel and slander.
     Libel consists of written or permanently recorded injuries to
     reputation; slander consists of oral injuries.

     The first requirement of defamation is an injurious statement,
     usually in writing in the case of libel and oral in the case of
     slander. The statement must be one that would expose the
     plaintiff to hatred, contempt, or ridicule; that is, it must
     seriously affect reputation. The statement must be transmitted
     to at least one person other than the defamer and the defamed,
     and the statement must be false. In cases in which the truth of
     the statement is contested, the defendant may be found liable
     unless he or she can prove truth.

     A number of instances occur in which a party is given a legal
     right to make statements that would otherwise be defamation.
     This right to be exempted from libel or slander suits is called
     privilege. Legislators, high executive officials, and judges
     have an absolute, or unlimited, privilege when conducting
     official business. The same holds true of communications
     between husband and wife. A number of other instances exist in
     which privilege is available, as long as the statement was not
     made with malice (that is, knowing it to be false or in
     reckless disregard to whether it is true or false). This is
     termed qualified privilege. Qualified privilege is available in
     commenting on public officials, on the work of public figures
     such as entertainers, and in a number of other instances of
     minor importance (see NEW YORK TIMES COMPANY V. SULLIVAN).

     Trespass

     Trespass provides protection for interests in real property
     (land or buildings) and will offer a remedy for any entry of a
     thing or person upon the real property possessed by another.
     Although the traditional rule was that trespass would be found
     even in the case of accidental or unintended entry onto the
     land of another, the more modern rule is that liability will be
     found only in the event of intentional or negligent entry or
     while carrying on especially hazardous activities, such as
     dynamiting, which might damage the property of another. Common
     types of trespass are felling timber, cultivating fields, or
     simply moving into structures on the property of another.
     Because of the impracticality of bringing suit for minor
     trespass, such as walking across the land of another, many
     states have enacted statutes making such acts subject to minor
     criminal penalties.

     Conversion

     Conversion provides a remedy for interference in rights to
     personal property (in other words, any movable property, as
     distinguished from real property). Acts such as wrongfully
     acquiring possession, transferring, withholding, or damaging
     the personal property of another constitutes conversion. The
     remedy for conversion is a forced sale; that is, the defendant
     is required to pay the plaintiff the value of the converted
     property (see TROVER), and the defendant then is given the
     property.