Article by: Scott Hall(docplocky@gmail.com)
 |
| English: The Restatement of Torts at the law library of UC Berkeley School of Law. (Photo credit: Wikipedia) |
Many citizens have read or heard about the person who had a very hot cup of coffee spill over into their lap, causing severe burns and resulting in a law suit, but not everyone knows what laws apply to this type of lawsuit. They know they have been wronged (even if by their own actions) and they know someone must own up to the responsibility of the error (in this case it was improper labeling) and when satisfactory compensation or relief has not been achieved, sometimes those citizens know they have to go to court in order to resolve those issues. Tort laws apply mostly to civil suits and sometimes can come from criminal judgments such as wrongful death settlements in homicide cases (much like O.J. Simpson’s case) and in each case parameters of tort law have to apply in order to successfully argue the case in a court room. In any court case, legal advice is certainly warranted, however, before considering professional help, one must understand what may be ahead in order to successfully defend or prosecute their side of the item in question and knowing a bit about Tort Law certainly will be beneficial. This article will summarize Tort law and help define a few of those parameters for consideration.
By definition, Tort Law is: A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. Generally the person who suffers the damage is known as the plaintiff and the person who is responsible for the cause of injury will be the defendant, and in some cases, both the plaintiff or defendant can be multiple persons, such as class action law suits over bad medications or implants or even goods that saturated a good portion of society such as defective high chairs or safety seats. Three elements must exist in Tort Law cases, first the plaintiff must determine if the defendant was legally obligated to act in a particular fashion, second, the plaintiff must prove the defendant failed in their legal obligations by failing to conform to that situation and lastly, the plaintiff must prove they suffered the injury due to the actions (or failed actions) of the defendant directly. Tort based actions are different than breach of contract actions, in that both parties do not need a mutual agreement in order for one side or the other to suffer injury.
 |
| Restatement (Second) of Torts (Photo credit: t-dawg) |
As with most Tort cases, damages incurred are a part of the cases settlements and those damages can be categorized into these general areas: compensatory, actual and punitive damages. Note: the term “actual damage” is relative to compensatory damages, but does NOT include punitive amounts and punitive damages does not necessarily apply to breach of contract disputes, unless the breach was willful, deliberate and wanton, such as deliberately withholding payments from contracts where both parties agreed to certain parameters but the injuring party ignores that contract on purpose for their own needs and does not give the other party notice, stay in contact or give reasonable reason why those parameters have not been met, again determining legal obligation by the injurer should be considered. Damages can include pain and suffering, future or current medical expense and loss of wages or compensation and while these three items are the most popular arguments, many other facets apply and depending on the type of tort that applies, these damages can vary. Specific tort application could include items such as assault, battery, negligence, product failures as well as intentionally causing emotional distress, ask a professional if considering pursuing a tort case as they will be better able to assist you in determining the how, when and what in your specific case.
 |
| Europees Aansprakelijkheidsrecht (Photo credit: Danny Mekic') |
As a general rule, torts will fall into one of these categories: intentional (such as assaulting someone), negligence or strict liability (product liability). Acts of domestic violence or abuse and assault fall into the category of intentional tort as well as criminal law and depending on the severity may call for compensation of the tort variety, such as current or further therapies or medical avenues. Failing to use good judgment or particular care that would be considered reasonable for anyone and results in injury to another is a negligent act. For example, if you knew that travelling through a construction site would result in a head injury and you fail to hand over a hard hat or warn the person of the potential for injury, that is a negligent action. Strict Liability or product liability has its own parameters to consider, such as, was the resulting injury due to the person performing the act (could it be foreseen), the manufacturer of the device or a fluke of nature, each must be considered before attempting to pursue for compensation, again a professional will be able to help clear up any questions.
As well as what is mentioned in earlier paragraphs, there are also tort laws that may be separate from the general categories, including areas of nuisance, defamation, invasion of privacy and economic tort law. With the variety of application, consulting professionals will aid in determining where a particular case fits as well as the beginning steps of how to approach a successful day in court. Nuisance tort can be either public (affecting the general public) or private (affecting individuals), in these cases, the courts may grant injunctive relief as part of the solution if the proposed legal ramifications are not satisfactory. For example, if a particular case of an obnoxious material were being spewed from a factory, this would be more public than private and if the action was a result of an animal trespassing into a yard affecting only the neighbor, this would fall into private nuisance and while damages may be included, the amounts and success of recovery fall into the hands of the plaintiff as well as the consideration of the court as to what is reasonable.
 |
| Caution: not a level surface (Photo credit: lars hammar) |
If pursuing relief under defamation parameters to consider would be: a false statement either written or verbal has occurred regarding a person or company, a publication or communication about that person is received by a third party, fault on the person or company amounting to intent or negligence as well as some harm caused to the recipient of the communicated media, statement or negligent action, this includes liable and slanderous statements. Tort infractions of this type require that many items may need to be documented and as is the case in every court proceeding, the more accurate and complete the information is, the better the chances of successful application of the law. Invasion of privacy, a growing concern in our digital world especially when our executive branch states persons who use a cell phone have no reasonable expectation of privacy, is a legal claim that another person or business has used someone’s likeness or unjustifiably invaded the persons private affairs and has caused them specific harm as a result, for example, tapping into someone’s phone conversation IS an invasion of privacy, especially if the parties in the conversation are not aware of the third parties presence, this type of tort also may have some criminal implications. Note to the public: Consider this approach if you suspect your local law enforcement agencies are listening into or “tracking” you through those conversations, by definition in Tort law it is a CRIME unless those entities have reasonable or probable cause, such as you were talking about committing an act of terrorism or planning a major heist.
 |
| where I sit for property, civ pro and torts (Photo credit: S.C. Asher) |
In conclusion, Tort law is law that relates to personal infractions or injuries that would otherwise be avoided if the parties affected took reasonable steps to protect or absolve the situation. Tort laws differ from breach of contract laws because the parties affected do not have to be entered into a mutual agreement. Seeking compensation or damages for the infraction has several parameters to consider, the most important is determining whether the defendant was legally, morally or specifically responsible for preventing the injury, such as labeling hot beverages so the consumer is aware of the consequences of negligent acts. If considering pursuing a civil litigation where injury occurs, it is very important to consult with a professional as to the specifics of your case and what sections of this law apply, in some cases such as wrongful death or product liability, the burden of proof will dictate what steps to consider in the pursuit of justice. The concepts of Tort law date back to the earliest founding of our nation, disputes of territory, mining region rights as well as others no doubt had their day in court, the difference between then and now is the digital platform we have to research and obtain helps, rather than onion skin, ink and lots of judicial travel by justice’s of the peace. Always consider professional advice when pursuing any legal action.
References, Readings and other Interesting links:
0 comments:
Post a Comment