IX. COMMON TORTS
As everyone knows, people living in the United States have certain rights. They acquire these rights under our laws, or just from the mere fact of being. Since we all work, communicate, and interact with other people, what we do may infringe upon the rights of others, and what others do may infringe upon our rights. For example, when the engineer designs a product, a process or a system, it may cause injury to someone’s rights. Characteristically, a design is based upon a mental image of the future, which advances technological progress. However, designing something or a combination of things that has never before existed can be hazardous, because one cannot possibly conceive of all the ramifications of a new concept. As a result of incorporating an untested concept, someone is liable to be injured. However, this injury, which is known as a tort, is an accepted price of progress in new engineering and technology.
The term Tort can be defined as wrongful injury to another person or another’s property rights. The legal system, for centuries, has provided steps to address and redress wrongs that have occurred to an individual by another individual or another entity. The law imposes duties between parties, and tort actions arise from someone neglecting their duty and causing injury to another party. For instance, a driver of a car has a duty to avoid hitting others while driving, and if the driver is negligent and as a result of that negligence injures another, a tort action is available to the victim to make the driver pay compensation for the damage caused.
The United States tort law traces its origins way back to the common law developed in England, and is primarily based on negligence. Besides negligence, a tort can be committed intentionally and sometimes intent can be an element in torts against persons, property, reputation and business. In negligence actions, which forms the basis for most tort actions, someone did something negligently, or neglected to do something he or she should have done.
Negligence is also defined as a failure to live up to one’s duty, which gives rise to liability for damages caused by that failure. In Black’s Law Dictionary, one of the leading legal term authorities, negligence is defined as "the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do." To establish the tort of negligence, the allegation must be supported by the following evidence:
In tort actions, the court must determine, first under law, whether one party owed a duty to another party. Unless the actor’s conduct creates some foreseeable danger to the victim, the actor generally does not owe a legal duty to the victim. Therefore, the foreseeability of injury as a result of certain action is considered an important basis for a conclusion that a legal duty does or does not exist between parties.
In the past, the courts held to the rule that one who failed to prevent an injury by failing to act may be found to have no duty, while one who creates a dangerous condition by his conduct has a duty to do something to prevent injury. However, this distinction has been eroded in recent years. The courts have now adopted the rule in many cases that "reasonable care" is required, where the degree of "reasonable" varies with the circumstances.
When one renders services recognized as necessary for the protection of persons or things, the service provider may have a legal duty to exercise care and avoid the risk of denying care to others. A duty to prevent harm can also arise from a contractual obligation, such as a breech of warranty that comes with the purchase of a product.
The plaintiff in a tort action usually must show that the defendant owed the plaintiff a duty of care. This duty of care is defined as that degree of care exercised by a reasonably prudent person in like circumstances. The average person is one possessing normal intelligence, memory, capacity, and skill to handle the circumstances, without handicaps, either physical or mental, that would set them aside as exceptional. While the law always talks about reasonable persons and average persons, it is much harder to find one in reality. However, to utilize the law to address grievances that result in injury, a standard must be established, and then allowance must be made for exceptions to this standard.
The standard of care, of course, is determined by the nature of the particular circumstances that cause the injury. For example, the standard of care by a surgeon in removing a vital organ would be more strict than the standard required of one who had no medical training, but because of an emergency, had to attempt a surgical procedure. An engineer works under an exceptional standard of care when he or she designs or supervises the construction of a machine, structure, or process. Thus, you will find that engineers’ and technicians’ projects are usually subject to quality control standards and supervision to ensure that the standard of care was met by the particular engineer.
In most tort injuries, it is usually quite apparent what action caused the injury. On occasion, more than one act or omission may cause the injury. An example is a motorist driving along a highway at night at a lawful speed, being blinded by oncoming headlights, and striking another car in the rear. Who is liable: The driver who was blinded or the person who failed to dim their headlights? In law, this question is solved by the theory of proximate cause, where the injury must be the proximate cause of the negligent act complained of. In the case of the negligent driver who was blinded, the conclusion would probably be that the driver who could not see should have slowed down to avoid the accident.
To reach the level of proximate cause for an injury, something must have been a substantial factor in bringing about the injury. One standard used to determine proximate cause is the "cause in fact" standard. Cause in fact is met if the but-for standard is satisfied; would the injury have occurred but for the defendant’s conduct. The other theory, legal causation, depends on the connection between cause and effect; the injury must be part of a natural and continuous sequence of events.
An example of the latter is where Black and White are engaged in the electrical repair of an overhead crane. Black turns off the electricity but Gray, another party, throws the wrong switch at the box and turns the electricity to the crane back on. Black receives a shock from the conductor, drops a wrench on White, thereby injuring White. The immediate cause of White’s injury is the wrench being dropped by Black. The proximate cause was Gray’s action in throwing a wrong switch. If the case went to court, a probable result would be a finding for White against Gray.
Now suppose, in the above instance, when White is struck, he falls over knocking over a can of gasoline. When the crane is activated, a fire starts destroying a neighboring house and a nearby garage in which a Rolls Royce is destroyed by the collapse of the roof of the garage from the fire.
The question is: What was the proximate cause of the loss of the Rolls? The fire would probably be considered a proximate cause, but it seems difficult to go all the way back to Gray to find the culprit. Proximate cause is the doctrine by which the courts view certain factual causes as just too far removed to be the basis for legal liability.
In certain instances, it is difficult or even impossible to show evidence of the defendant’s specific acts or omissions, but common sense tells the court that someone was negligent; for example, a sponge left in a patient’s body during surgery in an operating room. The doctrine of res ipsa locquitur was adopted by courts, and the expression means "the thing speaks for itself." For example, the sponge would not have been left in somebody’s body unless someone on the operating team had been negligent, and the defendant doctor had control of the operation sequence which caused the injury. Also, it can be shown that the plaintiff was under sedation, and in no way contributed to the injury. Thus, circumstantial evidence and not direct proof is used to prove the source of the negligence. In such instances, the defendant has an opportunity to rebut, which usually consists of showing evidence that he or she did exercise the requisite care, and that the particular sponges were so covered with blood, that it was difficult, if not impossible, to determine where all of them were. Of course, in an operation, there is a sponge nurse whose job it is to count the sponges going in and coming out to avoid such occurrences.
Negligence has been defined above as doing something that should not be done or neglecting to do something that should be done, either act causing injury. However, where the act is done or neglected to be done intentionally, or with a reckless disregard for the consequences, the term gross negligence is used to define such action. In these cases, the victim is more likely to recover punitive damages as well as ordinary damages if gross negligence can be shown.
In certain cases, the injury may have actually been caused by the injured party. One such doctrine, assumption of the risk, comes into play where the individual who was injured assumed risks for the experience or thrill of the very danger involved. Roller coaster rides immediately come into mind. For example, death by a heart attack during a roller coaster steep decent cannot lead to a recovery in a court action, since the assumption of risk defense relieves the defendant of liability for negligence. The same situation arises when one is injured by a foul ball at a baseball game. It has long been held that one attending a baseball game assumes the risk that they may be hit by a flying sphere off the bat of one of the players. The doctrine of assumption of risk is usually limited today to situations where the injured party knew and understood the risks involved.
A more complicated situation arises where a person accepts employment in a risky occupation, where economic realities often compel employees to engage in risky conduct. Courts have sometimes viewed such risks as involuntary, and under legislation known as the Worker’s Compensation Laws, the employer is deprived of the defense of assumption of the risk.
Assumed risks are those which are normally and naturally involved in any certain undertaking. For example, if the roller coaster became unsupported, which caused the heart attack above, recovery would be quite possible.
What about the good Samaritan or volunteer? The good Samaritan is the one who has assumed the risk, and if a person gives aid to another who is in distress, and this aid results in further injury to the distressed person, the volunteer is liable for such injury. Therefore, the average citizen should be careful as to how quickly they jump into a situation to save someone. Certain other states have good Samaritan laws which prohibit recovery against someone who in good faith made an effort to reduce injury to a person injured in their presence.
Contributory negligence comes from the negligent act of the injured party him or herself, wherein the victim failed to exercise ordinary care. In early common law days, if the plaintiff was found to have acted negligently, the plaintiff could not recover anything, which rule lead to harsh results. Over time, the doctrine of contributory negligence lead to today’s rule of comparative negligence, where if both parties are negligent, and an injury to the plaintiff would have occurred any way, recovery may be diminished by an amount related to plaintiff’s neglect in contributing to the total damage.
Three common causes of injury against a person are the torts of assault, battery and false imprisonment. Assault, which is quite frequently used improperly in common parlance, refers to a threat of violence, without the act of violence having taken place. A battery is also a tort against the person, which consists of intentionally and unlawfully touching or hitting another, person in an offensive manner. Thus, assault could be rising the fists in the presence of another, and battery would be bringing the fist down upon the head of the other person.
The tort of false imprisonment occurs when one is intentionally confined within limits set by the tort feasor. For example, confinement of a person in a car that is traveling too rapidly for exit to be made safely would be false imprisonment.
Malicious prosecution is another tort against a person, where someone sues another person in a court of law only for the purposes of annoyance or harassment, with no true basis for bringing the suit. If such litigation is brought in the civil courts, it is called abuse of process, or if involving the state, it is known as malicious prosecution. In such actions, the one bringing the suit or causing the suit to be bought must have "probable cause" that there were reasonable grounds to believe that the facts warranted the action complained of. If not, the potential defendant has a defense against such a suit for malicious prosecution.
In dealing with others, a person’s reputation is extremely important in attracting the trust and confidence of those with whom they deal, either in a business environment or personally. Thus, if false and malicious statements are expressed either orally or in writing about such a person and their reputation, such statements may constitute defamation, which is actionable at law. Defamation occurs when a false statement is made about a person which tends to expose the person to public ridicule, contempt or hatred. One can defame another person by making false statements regarding a criminal act, or which tends to injure one in a job or profession. Oral defamation is called slander, where written defamation or defamation by pictures is known is liable.
For the action of defamation to lie, someone other than the person who was defamed would have to hear or see the statement that was slanderous or libelous. A defense to a defamation charge is that the statement that was made was absolutely true. Regardless of the malicious manner in which the statements are made, if they are true, there is no defamation. Another defense to a defamation charge is that of privilege, where otherwise defamatory statements are made in carrying out a judicial, political or social duty. This defense arises from the necessity of making a full and unrestricted communication under situations where it is necessary. Thus, a libelous statement made in a court of law by one person against another cannot be considered as libel. Thus, the Supreme Court has held where the speaker makes a libelous statement, and that speaker is part of the media, and the subject matter is a public figure, there is no libel unless the reporter and the newspaper acted with malice in printing the story.
The owner of property in this country has a right to possess the property, to use it as long as that use does not infringe upon the rights of others, and to dispose of the property as they desire. The owner has the right to exclude others from using their property, or of taking possession of it. An invasion of these rights gives rise to a tort.
The tort of trespass to land occurs whenever someone without license enters on the land of another. Even simply walking across a person’s lawn is a tort; however, the law does not concern itself with trifles and a single instance of somebody walking across your lawn would probably not end up in a lawsuit.
Sometimes trespass actions end up in court where a neighbor builds a structure, such as a tool shed, across the property line of another, and the neighbor gets upset.
The person in possession of land has the right to exclude others, however, personal rights do take precedence over property rights. For example, one does not ordinarily have the right to shoot trespassers. This gives rise to the rule that any force used to remove someone from property must be no more than just sufficient to accomplish that purpose. Thus, in most jurisdictions, placing harmful traps around property to capture people trespassing is also illegal.
Over recent years, exceptions to trespass have arisen under the law. Two of these are easement or license, where an easement exists if numerous members of the public use a person’s property as they desire for a period of time. This is common-place near lake-side property where there is usually one path across someone’s property that the public crosses to reach the lake. After a long period of time of allowing people to use this path, an easement will have been created in the law, and the owner will ultimately be prevented from excluding the public. Sometimes this public easement takes 15 to 20 years to be created.
Also, the right to go on another person’s land can be given to that other person by the one in possession. This is known as a license.
The term attractive nuisance is one you usually find attached to unprotected swimming pools in a back yard. If the trespasser is injured by some hidden danger, the trespasser has little chance of recovery against the owner. However, if the swimming pool, for example, acts as an attractive nuisance, pertaining to children of tender age, the owner of the property would be liable for children using the pool, even without the owner’s permission. Attractive nuisance cases could involve children of any age, but children between 5 and 10 years old seem particularly susceptible. The largest factor, of course, is the presence or absence of proper precautions such as fences by the owner or occupant of the premises to keep the nuisance from becoming attractive.
When one steals the property of another, it is known as the crime of theft. The civil or tort counterpart to the crime of theft is known as conversion. Conversion constitutes the wrongful retention of another’s personal property, and also includes the wrongful alteration of property, and the wrongful use of property by persons other than the owner.
To obtain one’s property back from one who has unlawfully converted that property, the original owner of the property may maintain an action in court for conversion. This will net the true owner of the property the market value of the converted property, and gives title to the converter when the judgment amount has been paid. The owner may also maintain an action, called "replevin", to obtain a return of the property, instead of just seeking damages.
The United States laws support the right of people and businesses to compete with each other in a business venture. Usually the result is healthy, in that the public benefits from lower consumer costs as a result of robust competition. Therefore, laws have been developed to preserve competition, such as the antitrust laws, the Federal Trade Commission Act, the Robinson Panman Act, and various other laws to prevent unfair competition amongst businesses and individuals in their relationships with one another. However, this entire field is too large to cover within the metes and bounds of this course. So, therefore, only a few of the more common torts against economic rights will be covered here.
The first of these torts are fraud and misrepresentation. Fraud occurs when one makes a false representation of a material fact, makes the statement knowingly, with the intent that the other person will rely upon it, and the other person does reasonably rely upon the representation, and the other party is damaged due to their reliance on that false representation. The person injured then has a cause of action against the perpetrator of the statement in an action based on fraud.
However, false statements of opinion generally are not actionable. Also, the speaker must truly believe what he or she says is true, or else there is no intent to mislead, and the action or fraud is not made out. Further, if the one responding to the statement does not rely upon that statement, then that person cannot claim that he or she was harmed or injured by the statement.
In recent years, courts have created another tort of negligent misrepresentation. This tort is like fraud, however it is the negligence of the speaker, and not the intentional misrepresentation of the speaker that gives rise to the cause of action. Therefore, if a speaker negligently made a false statement, and the other individual relied upon that statement to their detriment and was injured, there may be liability.
Another tort against economic rights is inducing one to breach a contract with another. This tort is usually referred to as tortious interference with contract. In an early case, in 1953, the modern law was established in a case in which an opera singer was induced to breach her contract and work for another. There was no fraud or violence that had occurred, but the court stated that a right of action against the person inducing the breach of contract existed by the original contractor for the opera singer’s services.
The tort of inducing a breach of contract actually requires the one charged with the tort to actually have taken positive actions to induce the breach of the contract. An example is where Gray offers to sell Black better parts at a lower cost, causing Black to breach his contract with the person he is purchasing parts from at the present time. However, Gray cannot be said to have induced the breach unless he actively advocated Black’s breach of the contract. Merely offering to sell someone better products at a lower cost is not considered to be inducing a breach of contract. However, had Gray made particular statements to Black that he wanted him or encouraged him to breach his contract, a cause of action may arise.
Recently, courts have broadened this tort to cover anyone who interferes with another’s prospective contract, which is the expectation of a contractual relationship. For example, a company is free to submit a lower bid to obtain a contract, however making comments disparaging your competitor’s services or products runs a risk of moving from fair competition to tortious interference.
False or misleading advertising is prohibited under federal and state statutes, and even the common law. Any time one can show that a statement by a competitor is false, and that they have been injured by that false statement, such as losing sales, the person so injured has a cause of action against the person making the false statement. The federal Lanam Act, which regulates trademarks, also has a provision regulating unfair competition which prevents a competitor from making false statements about another competitor.
Three requirements must be met for false advertising to be actionable. First, the statements must be false, misleading or deceptive. Second, there must be confusion or misleading of the consumers, or there must be a likelihood of confusion or deception. Third, the false statements must be material, that is something that would influence the purchasing decisions of consumers.
The law today allows one injured to obtain an injunction against further false advertisement, and to recover damages and in some instances an accounting of the defendant’s profits due to the false advertising.
It is important that an injured party who has been victimized by a tort should take prompt action. Most states have statutes of limitations for tort actions, which provide that the legal action must be instituted within a certain time period, usually two years, after the tortious act has occurred, or after the person injured has become aware of the tortious act. If not timely filed, the right to take an action has expired and cannot be brought.
In equity cases, the term laches indicates a cause in which the plaintiff has slept on his rights too long and therefore cannot bring the case. The theory behind these time limitations is that the court should not be more protective of the plaintiff’s rights than the plaintiff was of his or her own rights.