Unformatted text preview: Overview of the Tort Liability
Concept CRJU E491P, Police Liability
Spring 2011, Mr. Smith The Tort Concept
The The word “tort” is derived from the Latin term torquere, which means “twisted or wrong.” The law of torts consists of a body of rights, obligations, and remedies applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. Plaintiff: the person who sustains injury or suffers pecuniary damage as the result of the defendant’s wrongful civil conduct.
Defendant, or Tortfeasor: the person responsible for inflicting the civil injury and who incurs liability, legal responsibility, for it. Legal Considerations
Legal Legally speaking, a tort is a civil wrong, exclusive of contract, committed upon the person or property of another person involving either:
1) a direct invasion of a legal right of the individual;
2) the violation of some public duty which results in special damage to the individual; or
3) the violation of a private obligation which results in damage to the other individual. Law of Torts: Objectives
Law The law of torts serves four main objectives. First, it seeks to compensate victims for injuries suffered by the culpable action or inaction of others.
Second, it seeks to shift the cost of injuries to the person or persons who are legally responsible for them. Third, it seeks to discourage injurious, careless, and risky behavior in the future. Fourth, it seeks to vindicate legal rights and interests that have been disregarded, compromised, or diminished. In theory, the objectives are served when tort liability is imposed for negligent or intentional wrongdoing. Characteristics of Torts
Characteristics The law of torts is derived from a combination of commonlaw principles and legislative enactments. Tort actions do not depend upon an agreement between the parties to a lawsuit as do contracts.
Tort actions are brought by private citizens, sometimes on behalf of the government, unlike criminal actions which are brought directly by the government. Remedies for tortious acts include money damages and injunctions. Tortfeasors are not subject to either a fine or incarceration solely for commission of the tort itself, although they may be incarcerated for contempt if they fail to comply with a court’s order. Proving Tort Liability
Proving Three elements must be proven in every tort action “by a preponderance of the evidence” before liability can attach to the defendant. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached the duty by failing to conform his or her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant’s breach of the legal duty. Tort Liability: Negligence
Tort Types of Torts Torts can be broadly classified into two major categories: Negligence and Intentional Tort. A third category, strict liability, has infrequent application to law enforcement activities. Negligence Negligence is the term used in tort law to characterize behavior that creates unreasonable risks of harm to persons and property although the resulting injury was not intended. The injury caused in a negligence case, although not intentional, came about because the tortfeasor did not conduct himself as a “reasonable person” would have under the circumstances. The Concept of Accident Negligence encompasses almost all unintentional, wrongful conduct that injures others but the mere fact that one person has unintentionally caused injury to another does not establish in and of itself that the person causing the injury was negligent.
In its strict legal sense, the word “accident” applies only to events that occur without the intervention of a human being; an event commonly called an “act of God.” Thus, in its strict meaning, a true accident is an event that no person caused or could have prevented. This does not mean, however, that human involvement may not have caused, or set in motion, the event which caused the harm. Accident or Negligence?
Accident An injury to another that results, for example, from a defendant’s sudden and unexpected physical ailment, such as a seizure or a blackout while driving a vehicle, will generally relieve the defendant of liability for the harm caused during the period of unconsciousness.
However, defendants who have reason to know of the existence of such medical problems are expected to take reasonable precautions against the risks their medical problems might create and may be held liable if they do not. The Duty Requirement
The Legally speaking, a plaintiff cannot recover from a defendant based upon an allegation of negligence unless the plaintiff is able to show, among other things, that the defendant owed a legal duty of care to the plaintiff, which the defendant breached.
Thus, absent a duty on the part of the defendant to the plaintiff, there can be no liability for negligence imposed upon the defendant, no matter how “unreasonable” the behavior. The Reasonable Person
The The “reasonable person,” traditionally known as the “reasonable man,” concept defines the standard by which a defendant’s conduct in a negligence action is to be evaluated. Assuming that a duty exists between defendant and plaintiff, that the defendant breaches the duty, and that harm is suffered by the plaintiff, the defendant can be deemed to have acted in a negligent fashion only if his conduct differs significantly from the conduct that would be expected of “a reasonably prudent person” confronted with similar circumstances.
The reasonable person standard only applies to evaluations of negligence, never intentional tort. Who is the Reasonable Person?
Who The reasonable person is not the average or typical person but, instead, “a composite of the community’s judgment” as to how the typical community member should behave, as decided by the “trier of the fact.”
Where the person whose actions are being evaluated has a special set of skills, experience, or training pertinent to the situation in which the injury occurred, the evaluation will be against a “reasonable person” having similar skills, experience, or training (e.g. a “reasonable police officer”). Proximate Cause
Proximate Even though a defendant may have owed a duty to the plaintiff and may, through his “unreasonable” behavior have breached the duty, the plaintiff may not recover for the defendant’s negligence unless the defendant’s unreasonable behavior was the actual cause of the plaintiff’s injury.
Defendants may be relieved of liability for their negligence if the resulting injury can not be considered as a “natural or probable” consequence of the negligence or if an “intervening cause” for the injury is present. Probable Consequence?
Probable A speeding automobile driver, A, negligently collides with a truck carrying dynamite, thereby causing an explosion that injures a pedestrian, B, who is walking on a sidewalk two blocks away. Should A be liable for B’s injury if A did not know the truck was carrying dynamite?
What if the truck displayed a “Hazardous Materials” placard indicating explosives were onboard? Intervening Cause
Intervening A different analysis of a defendant’s negligent behavior is required where a plaintiff’s injury results from more than one “cause.” A, the defendant negligently injures a pedestrian while driving his automobile. The pedestrian is transported to a hospital emergency room for treatment. While at the emergency room, B, a doctor negligently treats the plaintiff’s injuries, aggravating the original injury caused by the defendant.
Should A or B be responsible for the pedestrian’s injuries? How would you apportion responsibility? Degrees of Negligence
Degrees Negligence is classified in different degrees, depending upon the severity of the wrongdoer’s departure from the standard of behavior expected from a reasonable person. Simple negligence Injury results from a slight lack of care Example: Driving 45 in a 35 mph zone
Gross negligence Injury results from an extreme lack of care Example: Driving 70 in a 25 mph zone Recklessness
Recklessness At common law, the terms recklessness and negligence were often used interchangeably, but they do not, legally, have the same meanings. Both terms refer to legal concepts of acceptable and unacceptable risk, but they differ in how the risk is evaluated.
As interpreted today recklessness requires a conscious disregard of the law: a complete lack of care for the possible impact of one’s behavior. Negligence, to the contrary, involves unreasonable behavior, but not consciously unlawful behavior. Example: Driving 70 mph on an icy road in a crowded school zone could be considered “reckless.” Criminal Negligence
Criminal Although routinely discussed as a civil concept, negligence may, under some circumstances, be classified as criminal.
Criminal negligence is conduct that demonstrates such a drastic departure from what would be the conduct of a reasonable person in the same circumstances that it can be seen as incompatible with a proper regard for human life. The distinction between recklessness and criminal negligence lies in the presence or absence of foresight as to the prohibited consequences. Recklessness occurs where the defendant knowingly exposes another to the risk of injury. Criminal negligence occurs where the defendant fails to foresee otherwise avoidable dangers, which a reasonable person would foresee, or manifests “willful blindness” by intentionally ignoring the reality of the situation. Tort Liability: Intentional Tort
Tort An intentional tort occurs where there is a deliberate interference by the tortfeasor to a legally recognized interest of the plaintiff, such as the plaintiff’s right to bodily integrity, emotional tranquility or freedom from confinement or deception. The intent element is satisfied when the tortfeasor acts with the desire to bring about harmful consequences to the plaintiff and is substantially certain that such consequences will follow his actions. Intentional Torts and Crimes
Intentional The behavior underlying an intentional tort may also constitute a crime under state law. Examples: Battery, Forcible Confinement In an intentional tort, the actor’s behavior is not inadvertent, but involves, instead, a conscious intent to injure. Because the wrongful act involves the defendant’s subjective intent, it is not evaluated against the objective “reasonable person” standard. In other words, the question is never “would a reasonable person have intended to cause this harm?” A reasonable person would not intend harm as, per se, such an intention is unreasonable under the law. Constitutional Torts
Constitutional Involve violations of a federally protected statutory or constitutional right. Although section 1983 claims share similar concepts with common torts, they are a distinct and separate type of injury and the analysis applied to them is significantly different.
State and local police officers are frequently sued under 42 USC section 1983 because of the potential for recovery of large damage awards. Federal officers can not be sued under section 1983, but can be sued directly (Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics; US S Ct 1971) Simple negligence will generally not support individual liability under section 1983. Damages in Tort Actions
Damages “Damages” refers to an award of money
Three major types of damage awards exist: Nominal Damages Recognition that injury occurred, but without any significant actual loss
Compensatory Damages Sometimes referred to as “special” or “actual” damages; awarded to make the injured party “whole” again
Punitive Damages Sometimes referred to as “exemplary” damages; are imposed upon a wrongdoer and are paid to the injured party, in an effort to punish the wrongdoer and to deter similar future wrongful conduct Other Types of Relief
Other Injunction Court ordered relief that requires a party to either refrain from doing an act or to do an act.
Typically issued where there is a belief by the court that additional future harm may be likely to occur. Declaratory relief A court’s judgment, called a declaratory judgment, that declares the rights of the parties to a case or expresses the court’s interpretation of a question of law, without ordering anything to be done. Often used to encourage or compel settlement in a case. Limitations on Damages
Limitations State Tort Claims Legislation Claims for negligence brought against a government agency may be limited under a state’s “Torts Claim Act.” $300,000/$600,000 cap in SC for negligence. Some officials may also be “immune” from suit by state statute.
Intentional torts are brought against individual officials, not pursuant to a tort claims act. 42 USC section 1983 Claims Negligence claims against individuals are generally not supported, although this is not clear where the action is against a municipality.
No “cap” on the amount of damages recoverable under section 1983. Eleventh Amendment immunity exists for “official capacity” acts of state level officials, but does NOT protect local officials (e.g. towns, cities and counties). ...
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This note was uploaded on 06/06/2011 for the course CRJU E491P taught by Professor Smith during the Spring '11 term at South Carolina.
- Spring '11