Text № 7 Lawsuits for Personal Injury
During the early development of the law, it was recognized that whenever possible the court should award compensation to those persons harmed by the actions of another. As a result of this determination, the theory of tort liability was conceived. Tort law is based on the idea that anyone who causes injury to another person or his property should be held responsible for this harm. It differs from criminal law, in which a state imposes punishment upon the guilty party and thereafter seeks to rehabilitate him. Tort theory is also different from contract law which the court uses to give legal effect to the promises of individuals.
In essence, a tort, or civil wrong, is the violation of a personal right guaranteed to the individual by law. A person has committed a tort if he has interfered with another person’s safety, liberty, reputation or private property. If the injured party can prove that the defendant proximately caused him harm, the court will hold the defendant responsible for the plaintiff’s injury. If he doesn’t have a valid defense, the defendant will be forced to pay for the damage he caused.
Tort liability can be divided into three broad areas:
* Liability as a result of intentional conduct;
* Liability as a result of negligent conduct;
* Liability without fault.
Individual torts include such offenses as assault, battery, trespass, conversion, defamation, and deceit. In addition, accidental injuries caused by defective machinery or dangerous activities can render the owner or person in charge liable for the damage.
Since the individual can easily become involved in tortious situation, often through little or no fault of his own, it is useful to know what actions are considered torts and what defenses exist to eliminate or reduce liability.
Tasks for the text:
1. Read the title of the text and say what the text is about.
2. Divide the text into some parts and name each part.
3. Make up the plan of the text.
4. Find the sentences in each part which contain the main idea.
5. Say what new facts and information you have found out from the text.
6. Give a brief summary of the text.
Text № 8 Liability Resulting from Intentional Conduct
An individual has committed an intentional tort if he has knowingly violated the rights of another. He may have considered his action a practical joke, or he may have believed that no harm would result. Neither excuse constitutes a valid defense. He will be held liable for an intentional tort because he desired to wrongfully interfere with another’s interests and because he acted upon that desire. If the guilty party has injured his victim, he will be forced to compensate that individual for his injuries.
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Since many seemingly harmless pranks or thoughtless actions can lead to liability for a civil wrong, it is useful to know what acts constitute intentional torts.
Assault. Assault is an intentional act which provokes in the victim a reasonable apprehension that the aggressor intends and is able to harm him. No contact is necessary. The harm is the mental fear of injury. To illustrate, suppose two neighbors, Jones and Smith, are always quarreling. Jones starts to build a garage which Smith believes will infringe on his property. In his anger Smith grabs a hatchet. Running toward Jones he begins yelling and waving the hatchet wildly. Although Smith does not actually hit Jones, he may be liable for assault because his acts placed Jones under a reasonable fear that he would be injured. Even if Smith meant no harm and was only carrying a practical joke to an extreme, the liability still exists.
An assault action, however, presupposes that the victim is aware of the impending harm. Suppose Smith was behind Jones when he raised the hatchet. At this point there is no assault because Jones is unaware of the raised hatchet. He has no apprehension of impending harm. Or, if Smith points a gun at Jones, but Jones doesn’t see it, the result is the same. No liability exists because the victim is unaware of the act and therefore cannot be frightened or intimidated.
Normally, words alone are insufficient to constitute an assault. The aggressor must have some ability to carry out the impending harm. Thus, words coupled with an overt act are sufficient. For example, if Allen approaches Baker, waves a pistol at him, and says ‘stick’em up’, he has committed an assault. The words alone are no cause for fear, but the words, coupled with the pistol, constitute a distinct threat. In this situation, Baker’s fear that he will be harmed is entirely reasonable.
Battery. In simple terms, a battery is a completed assault. It can be defined as the unjustified use of force against the body of another person, resulting in unconsented contact with that person. Fear of apprehension of injury is not part of this tort. All that is necessary is that the force be intentional and that it be applied without the victim’s consent. In our example, if Smith had actually struck Jones with the hatchet, he would have committed a battery upon him and would be liable for any resulting injuries.
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Battery sometimes occurs as the result of unauthorized surgical operations. Suppose Dr. Casey is to perform an operation on Mrs. Olson’s right leg. Permission is granted for that operation, but while in the operating room, Dr. Casey discovers an ugly tumor on his patient’s left leg and removes it. Courts have held that since he did not have permission to operate on the left leg, the doctor is liable for battery. In view of these court results, hospitals often insert a protective clause in their consent forms. This clause gives them permission to perform any additional surgery that is both beneficial and minor. Therefore, it is important to read a consent form for an operation carefully in order to see what clauses it contains. If a question arises about the meaning of a particular statement, the doctor can usually answer it. The safer course of action, however, might be to ask a lawyer to explain the meaning and effect of the clause.
False imprisonment. False imprisonment is a violation of the individual’s right of personal liberty. This tort is described as the unlawful and unjustified detention of a person against his will. The law considers a person falsely imprisoned only if he is completely prevented from going about his business. A victim of this tort can bring an action against the person responsible and recover money compensation for his loss of time, any physical injury, illness, or any mental anguish he may have suffered.
A simplified example of false imprisonment would occur if Williams, without right, placed Young in a room and locked the door, thereby preventing him from leaving. However, if there were a window in the room through which Young could have escaped, a court might find that the detention was not sufficiently complete to constitute false imprisonment.
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In their attempts to curb shoplifting, store merchants occasionally violate the personal liberty of suspects by detaining them without a reasonable cause, as in the following example:
Mr. Davis, the store detective, stops Jimmy and Johnny as they try to leave the store. Davis didn’t see the boys take anything nor did anyone report to him that they did. He just doesn’t trust their looks or their mannerisms as they wander through the store. His examination of their shopping bags shows that they have paid for everything. Jonny and Jimmy could file a lawsuit against Davis and the store for the false imprisonment.
Shoplifting is such a major problem that many states have modified their laws governing false imprisonment. These new provisions allow authorized store personnel to detain a person whom they reasonably believe has stolen merchandise.
Trespass.Strictly speaking a trespass is the unlawful invasion of another person’s real property. This tort has its roots in early English and American common law. Traditionally, the individual has enjoyed the right to own and use land without interference. Thus a person who intentionally enters private property without the owner’s consent technically commits trespass, regardless of whether or not he harms the property. Examples of technical trespass include animals intruding on one’s property, people using private property as a short cut, or children throwing rocks on someone’s land. Since the harm to the land is minimal in these cases, a court would probably award nominal damages, such as one dollar.
However, many trespasses result in serious damage to the land or its owner. For example, a driver of a moving van, while attempting to turn around in the street, drives the truck over the curb onto a private lawn and crushes the owner’s new sidewalk. The company is liable to the property owner for the damage. To illustrate another serious trespass, suppose some neighborhood children camp on the far end of a man’s acreage without his consent. Thinking that they have put out their campfire, the children bed down for the night. However, the wind comes up and fans the coals to life. The subsequent fire spreads and eventually burns down the owner’s house. He can recover damages from the children and possibly from their parents for the loss of his house.
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Error is no excuse in the eyes of the law. A trespass committed by mistake is still a trespass, and the transgressor is liable to the property owner for any damage he has caused. For example, John and George have the mineral rights for a parcel of land on which they discover natural gas. After capping their find, they seek a method of economically producing it. Meanwhile, ABC Gas Company, under the impression that it is drilling on its own land, «discovers» and attempts to recoup the same natural gas deposit. Since John and George have the legal rights to the minerals, they can recover for damages even though ABC Gas Company believed that it was drilling on its own land.
Conversion. Trespass applies to the intentional invasion of real property. In a similar manner, conversion to the exercise of dominion over someone else’s personal property. Personal property includes tangible possessions such as cars, appliances, clothing, and jewelry, and intangible property such as stocks and bonds.
The term conversion encompasses several different acts. One is unauthorized appropriation, either openly or fraudulently, of another’s property.
John, a college student, goes into Joe’s room and takes his typewriter. Joe has not given his permission for this act. Since he has no right to take the machine, Mr. Glick, a con-artist, convinces Mrs. Simpson to give him $ 2,000 worth of stock certificates as an investment in his uranium venture. There is no such venture. Mr. Slick is liable to Mrs. Simpson for conversion.
Another form of conversion is the unauthorized use of property. Under this principle a person legally acquires possession of the property but subsequently converts it to his own personal use without the owner’s permission.
Mr. Porter drives into Acme Parking Company for off-street parking during business hours. Instead of parking the car, the parking attendant drives it around all day. Since Mr. Porter gave no consent for this use, the parking around all day. Since Mr. Porter gave no consent for this use, the parking attendant is liable to Mr. Porter for conversion of the car.
Another illustration of this tort is the unlawful destruction or alteration of property owned by another. When a person destroys another’s property, the damage is obvious. It is a more difficult problem when the property is altered.
Mr. Stone takes his light tan suit to Ace Cleaners for dry-cleaning. Instead of cleaning it, Ace Cleaners dyes the suit a dull black colour. Ace Cleaners is liable to Mr. Stone for conversion.
Mr. Pane has a cord of large logs in the backyard. He plans to construct a fence with these logs. While Mr. Pane is away, Sam enters the yard and cuts the logs into small pieces, suitable only for firewood. This alteration of the identity of Pane’s property renders Sam liable to Mr. Pane for the wrongful conversion of the logs.
Conversion also occurs when an individual disposes of property without the owner’s consent. Mr. Dix lends Mr. Dent his diamond stickpin. Without Mr. Dix’s permission, Mr. Dent gives it to a third party. Mr. Dent is liable for converting the pin to his own use.
A refusal to surrender property upon demand of the owner is also a form of conversion.
Mr. Lewis hires Acme Moving & Storage to transport his furniture across the country and then keep it in storage for a month. Upon finding a new house, Mr. Lewis demands his furniture. Acme, for no reason, refuses to surrender the goods. Acme is liable for conversion of Mr. Lewis property.
However, if the demand is unreasonable, there is no liability. Suppose Mr. Lewis demanded immediate delivery at 2 : 30 a. m. In this case there is no liability. Also when there is a legitimate question as to the identity of the man who demands delivery, there may be no liability on the part of Acme.
The act of conversion is complete when the actor takes, detains, or disposes of the item of property. At this point the victim has the right to bring an action for conversion in court. If the owner subsequently recovers possession of the item, he can bring an action, but the amount of recovery will be decreased because he has recovered the object of the suit.
Defenses. If a individual has a defense to an intentional tort, he will not have to pay damages. The law will leave the victim as it found him. The more common defenses to intentional torts are privilege, consent, self-defense, defense of property, and legal justification.
The law applies the term «privilege» to those situations in which the defendant, although otherwise liable, has acted in the public interest. He is therefore entitled to freedom from any liability, even at the expense of damage or injury to the victim. One example would be the store owner who is privileged to detain suspected shoplifters in order to curtail this crime.
Privilege sometimes serves as a defense to battery. An immigration doctor who injects preventive shots in every incoming passenger to safeguard the health of the country’s inhabitants is acting under a privilege. Hence he is not Another defense is consent, meaning that the victim «consented» to the act. For example, participants in sports consent to playing. If their bodies are touched, there is no tort. If two belligerents start to fight, most courts say that each consented to fight. Therefore, neither can recover from the other for any injuries he may have incurred in the melee Under the same theory, a surgical operation usually requires the consent of the patient in order to protect the doctor from liability for battery.
The privilege of self-defense is based on the necessity of giving a man the right to take reasonable steps to defend himself. The right to act in self-defense exists not only when the danger is real, but also when it is reasonably apparent that danger exists. A common situation allowing this defense occurs when an individual accosts another in an alley and tries to take that person’s wallet. If the victim reasonably believes that his safety is threatened, he may use reasonable force to fend off his attacker. When he no longer faces any danger the individual cannot inflict further harm upon his attacker. Instead, he must seek the law’s help.
The defense of private property is subject to the same rules that govern self-defense of one’s person. An individual may use a reasonable amount of force to safeguard the peaceful possession and enjoyment of his property. A person cannot use excessive force. For example, a rifle should not be used to ward off intruders when it is apparent that an oral command to leave would be sufficient.
Legal justification is the defense that protects all law enforcement officers who are acting in the line of duty. Their acts in apprehending suspects cannot be the basis for an intentional tort. Thus, a search of an individual premises conducted with a valid search warrant would not support a claim of trespass. The officer was legally justified in entering the property.
Tasks for the text:
1. Read the title of the text and say what the text is about.
2. Divide the text into some parts and name each part.
3. Make up the plan of the text.
4. Find the sentences in each part which contain the main idea.
5. Say what new facts and information you have found out from the text.
6. Give a brief summary of the text.
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