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TORT.LAW
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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.