Civil Law and Procedure

Transcription

1 Chapter 5 Civil Law and Procedure Business Law Ms. Turner

2 Crime Offense against society

3 Tort Private or civil wrong; offense against an individual Can sue to receive money damages Can be both a crime and a tort

4 Elements of a Tort 1. Duty legal obligation to do or not to do something 1) Not to injure another 2) Not to interfere with property rights of others (Ex. Trespassing) 3) Not to interfere with the economic rights of others (Ex. Right to contract) Judge will decide if duty exists (question of law)

5 Depends on type of tort Elements of a Tort (continued) 2. Breach violation of the duty Question of fact for a jury to decide Certain mental state Tort was intentional (intentional tort) Intent may not be required Based on negligence Carelessness is not required Strict liability intent nor carelessness is required

6 Elements of a Tort (continued) 3. Injury harm recognized by law; if no injury (probably) no tort

7 Elements of a Tort (continued) 4. Causation proof that breach caused the injury Proximate Cause reasonably foreseeable that a breach will result in injury

8 Vicarious Liability When one person is responsible for the torts of another; most commonly by employer for acts by employee Children, minors, and insane may be held responsible for injuring others

9 Parents are usually not liable for torts of their children --- some states make parents liable up to a certain dollar amount Parents are liable if they give children Dangerous InstrumentalItIes (gun without instructions) OR continuing dangerous habits (throwing snowballs and not stopping them)

10 Intentional Torts Defendant intended the injury or act

11 1. Assault 2. Battery Threatening to physically or offensively injure another Ex. Raising a fist... Intentional violation of the duty to not harm or offensively touch another Ex. Punching, spitting on, shooting Not battery if not intentional or if in selfdefense, or if consent is given (boxing)

12 3. False Imprisonment Depriving a person of freedom of movement without person s consent and without privilege Consent agreeing to being confined Suspect sitting in a police car to explain --- prevented from leaving means no consent Privilege justifies imprisonment; probable cause for arrest

13 4. Defamation False statement that endangers another s reputation Slander spoken defamation Libel written or printed defamation Two types of defamation

14 3 Components of Defamation 1. Statement must be FALSE 2. Statement is communicated to a third person 3. Statement brings victim into disrepute, contempt, or ridicule of others Exception: Known to be false when made Statements about public officials or prominent personalities (unless made with malice) Judges, witnesses, lawyers are immune from liability when made during judicial proceedings

15 5. Invasion of Privacy Unwelcome and unlawful intrusion into one s private life so as to cause outrage, mental suffering, or humiliation Can be a TRUE statement Ex. 2-way mirrors in restrooms, illegal eavesdropping with listening device, unauthorized opening of letters,...)

16 Exceptions Wire tap with warrant Public figures give up their right to privacy

17 6. Trespass to Land Entry onto property of another without consent (Ex. Dumping garbage, breaking windows, walking,...) INTENT = being on the land NO INTENT = being thrown on the land

18 7. Conversion People have the right to control possessions and use of personal property If stolen, destroyed, or misused it is conversion A thief is always a converter

19 8. Interference with Contractual Relations When a third party encourages a breach liable to non-breaching party

20 9. The F-Word Fraud Intentional misrepresentation of important (material) fact (lie) Opinion is NOT fraud

21 Negligence Reasonable Person Standard Most common tort intent is NOT required; carelessness IS Under 7, NOT negligent If involved in an adult activity, held as an adult Contractors are held at a higher standard

22 Defenses to Negligence 1) Contributory Negligence Plaintiff cannot recover if partly negligent 2) Comparative Negligence Plaintiff and defendant are awarded damages in proportion to their responsibility Assumption of Risk If the plaintiff is aware of danger and proceeds anyway, he/she cannot recover

23 Strict Liability Proof of both the activity and the injury substitutes for proof of breach of duty; even when NOT negligent Dangerous activities Wild animal ownership Sale of goods that are unreasonably dangerous If defect, seller and manufacturer are BOTH liable

24 Damages Victims of Torts can Recover 1. Injunction Order to do or not do something; can prevent a tort 2. Damages Money awarded to injured party; puts victim in the same financial position as before the tort

25 Types of Damages 1. Actual or Compensatory Damages Jury usually decides and can include pain and suffering, lost wages, etc. 2. Punitive Damages Always available when there is an intentional tort; punishes the defendant as an example to others

26 FYI Lawyers usually get a contingency fee: 25% before trial 33% during the trial (won) 40% if won during appeal

27 Trying a Civil Case Judge Decides issues of law Jury (not always a right in a civil trial) Decides issues of fact If no jury, judge decides issues of law AND fact In civil trials, vote does not have to be unanimous

28 Steps in a Civil Trial 1. Opening statements 2. Evidence is presented 3. Testimony by witnesses subpoena may be issued for witness to appear failure to show is contempt 4. Closing statements 5. Instructions to jury 6. Jury deliberation determine if a preponderance of the evidence (51%) supports plaintiff s case 7. Verdict 8. Judgment judge final result of the trial

29 Satisfying a Judgment When judgment is final, defendant pays plaintiff Writ of Execution Issued if defendant does not pay Property can be sold, saving taken, etc proceeds used to pay judgment