Current EventsCurrent Events

High school student charged with High school student charged with possession of child pornography after possession of child pornography after girlfriend sends photo via cell phone. girlfriend sends photo via cell phone.

20 million dollars awarded to a plaintiff for 20 million dollars awarded to a plaintiff for battery. (physical contact, intentional, battery. (physical contact, intentional, harm)harm)

Back to the Peanut Butter…..Back to the Peanut Butter…..

Civil Actions are Different Civil Actions are Different Criminal ActionsCriminal Actions– Brought by the governmentBrought by the government– Government is known as the prosecutionGovernment is known as the prosecution– Prosecution has the burden of proof – Prosecution has the burden of proof – beyond a reasonable doubtbeyond a reasonable doubt– Defendant loses if found guiltyDefendant loses if found guilty– Usual penalty is a prison sentenceUsual penalty is a prison sentence

Civil ActionsCivil Actions– Brought by private citizensBrought by private citizens– Person bringing action is Person bringing action is

known as the plaintiffknown as the plaintiff– Plaintiff has the burden of Plaintiff has the burden of

proof – proof – preponderance of preponderance of the evidencethe evidence

– Defendant loses if found Defendant loses if found liableliable

– Usual penalty is money Usual penalty is money damagesdamages

Different standards in criminal Different standards in criminal and tort and tort

To take away from last class. . . To take away from last class. . .

The major difference between assault and battery is one The major difference between assault and battery is one requires physical contact while the other requires the requires physical contact while the other requires the fear/apprehension (this is not true in criminal law)fear/apprehension (this is not true in criminal law)

Damages are required in every INTENTIONAL tort claim Damages are required in every INTENTIONAL tort claim – this does not mean physical harm. – this does not mean physical harm.

In self-defense you can not use more force than you are In self-defense you can not use more force than you are being threatened withbeing threatened with

If you consent to a tort then you should not bring a law If you consent to a tort then you should not bring a law suit….or you should expect to losesuit….or you should expect to lose

Negligence DefinedNegligence DefinedDefined: “The failure to exercise the standard of care that a Defined: “The failure to exercise the standard of care that a reasonably prudent personreasonably prudent person would have exercised in a would have exercised in a similar situationsimilar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk ; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights”of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights”

Important characteristic of negligence – the Important characteristic of negligence – the defendant defendant does not intenddoes not intend for the bad for the bad consequences to result consequences to result

How to Prove NegligenceHow to Prove NegligenceThe plaintiff needs to prove four The plaintiff needs to prove four elementselements by a preponderance of the evidence by a preponderance of the evidence– DutyDuty– Breach of DutyBreach of Duty– Causation (two parts)Causation (two parts)– DamagesDamages

DutyDutyDefined: “A Defined: “A legal obligationlegal obligation that is that is owed or due to anotherowed or due to another and that needs to and that needs to be satisfied; an obligation for which somebody else has a corresponding right”be satisfied; an obligation for which somebody else has a corresponding right”

Example: If you drive a car, you have a Example: If you drive a car, you have a duty to obey the rules of the roadduty to obey the rules of the road

The Duty of CareThe Duty of CareGenerally speaking, a person owes a “Generally speaking, a person owes a “duty of careduty of care” to those around him or ” to those around him or her (i.e. a duty to act reasonably)her (i.e. a duty to act reasonably)

How is this duty of care determined?How is this duty of care determined?– By an By an objective standardobjective standard

When evaluating a person’s conduct, tort When evaluating a person’s conduct, tort law asks – would a law asks – would a reasonable person of reasonable person of ordinary prudenceordinary prudence in the defendant’s in the defendant’s position act as the defendant did?position act as the defendant did?

The Duty of Care: ExampleThe Duty of Care: ExampleWould a reasonable person drive down the street with a paper grocery bag Would a reasonable person drive down the street with a paper grocery bag over her head?over her head?

The reasonable person would not do thisThe reasonable person would not do this

Thus, part of the duty of care when driving Thus, part of the duty of care when driving is to not obstruct your visionis to not obstruct your vision

Who is the Reasonable Person?Who is the Reasonable Person?The reasonable person is a The reasonable person is a legal fictionlegal fiction

Typically, the jury is asked whether a Typically, the jury is asked whether a reasonable reasonable personperson of of ordinary prudenceordinary prudence in the in the defendant’s defendant’s positionposition would act as the defendant acted would act as the defendant acted

The reasonable person The reasonable person considers: how considers: how likelylikely a certain a certain harm is to occur, how harm is to occur, how seriousserious the harm would be if it did the harm would be if it did occur, and the occur, and the burdenburden involved in avoiding the harminvolved in avoiding the harm

Circumstances MatterCircumstances MatterCircumstances matter when evaluating a defendant’s actions and the law typically Circumstances matter when evaluating a defendant’s actions and the law typically says that a says that a defendant’s physical characteristicsdefendant’s physical characteristics are part of the circumstances are part of the circumstances

What characteristics of the defendant What characteristics of the defendant become “a part of” the reasonable person?become “a part of” the reasonable person?– Physical disabilitiesPhysical disabilities– If defendant is a child, the child’s age (unless If defendant is a child, the child’s age (unless

doing an “adult activity” such as driving a car)doing an “adult activity” such as driving a car)– Defendant acted during an emergencyDefendant acted during an emergency

Circumstances Matter (cont’d)Circumstances Matter (cont’d)What characteristics of the defendant What characteristics of the defendant do notdo not become “a part of” the reasonable person? become “a part of” the reasonable person?– Mental characteristics (e.g. if defendant is of below average intelligence, he can’t defend his actions based on this)Mental characteristics (e.g. if defendant is of below average intelligence, he can’t defend his actions based on this)– IntoxicationIntoxication

These lists are not comprehensive, but they These lists are not comprehensive, but they cover some of the common categoriescover some of the common categories

Breach of DutyBreach of DutyDefined: “The Defined: “The violationviolation of a of a legal or moral obligationlegal or moral obligation; the failure to act as the ; the failure to act as the law obligates one to act”law obligates one to act”

What do you think constitutes a breach of What do you think constitutes a breach of duty?duty?

Once the duty is established, it is a simple Once the duty is established, it is a simple matter to determine whether the matter to determine whether the defendant’s actions met this defendant’s actions met this standard of standard of carecare or not or not

Problem #1: Duty and BreachProblem #1: Duty and BreachItchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot. He Itchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot. He stops at the intersection, looks to the left and to the right and then crosses the streetstops at the intersection, looks to the left and to the right and then crosses the street

How would a “reasonable person” act?How would a “reasonable person” act?

Did Itchy breach the standard of care?Did Itchy breach the standard of care?

Problem #2: Duty and BreachProblem #2: Duty and BreachScratchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot at night. He is wearing black Scratchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot at night. He is wearing black pants, a black sweatshirt, black shoes, black gloves and a black ski mask. Scratchy puts his iPod headphones on and pants, a black sweatshirt, black shoes, black gloves and a black ski mask. Scratchy puts his iPod headphones on and begins blasting music at full volume. Without looking, Scratchy crosses the streetbegins blasting music at full volume. Without looking, Scratchy crosses the street

How would a “reasonable person” act?How would a “reasonable person” act?

Did Scratchy breach the standard of care?Did Scratchy breach the standard of care?

CausationCausationThere are two aspects of causation that must be considered: There are two aspects of causation that must be considered: cause in factcause in fact and and proximate causeproximate cause

Cause in fact defined: “The cause without Cause in fact defined: “The cause without which the event which the event could not have occurredcould not have occurred””

Proximate cause defined: “A cause that is Proximate cause defined: “A cause that is legally sufficientlegally sufficient to result in liability; an act to result in liability; an act or omission that is considered in law to or omission that is considered in law to result in a consequence, so that liability can result in a consequence, so that liability can be imposed on the actor”be imposed on the actor”– Also known as Also known as legal causelegal cause

Cause in Fact: The “But For” TestCause in Fact: The “But For” TestHow does the law determine what is a How does the law determine what is a cause in factcause in fact??

The “but for” test: If the defendant had not The “but for” test: If the defendant had not acted negligently (by breaching the acted negligently (by breaching the standard of care), the plaintiff would not standard of care), the plaintiff would not have been injuredhave been injured

Proximate Cause: ForeseeabilityProximate Cause: ForeseeabilityHow does the law determine what is a How does the law determine what is a proximate causeproximate cause??

Foreseeability: Most courts say that a Foreseeability: Most courts say that a defendant is liable only for consequences defendant is liable only for consequences of his negligence that were of his negligence that were reasonably reasonably foreseeableforeseeable when he acted when he acted– Seeks to limit the defendant’s liability to those Seeks to limit the defendant’s liability to those

results that are of the same general sort that results that are of the same general sort that made the conduct negligent in the first placemade the conduct negligent in the first place

Problem #3: CausationProblem #3: CausationMr. Burns races down the street in his car with a paper grocery bag over his Mr. Burns races down the street in his car with a paper grocery bag over his head. Hans Moleman begins to cross the street and is hit by Mr. Burns. head. Hans Moleman begins to cross the street and is hit by Mr. Burns.

Was Mr. Burns’ behavior the cause in fact of Was Mr. Burns’ behavior the cause in fact of Hans’ injuries?Hans’ injuries?

Was it the proximate cause of Hans’ injuries?Was it the proximate cause of Hans’ injuries?

Problem #4: CausationProblem #4: CausationCaptain McAllister’s boat spills oil into Springfield Harbor. Some of the oil sticks to docks owned by Fat Tony. One Captain McAllister’s boat spills oil into Springfield Harbor. Some of the oil sticks to docks owned by Fat Tony. One of Fat Tony’s workers is welding on the dock and some molten metal ignites the oil, which in turn ignites the entire of Fat Tony’s workers is welding on the dock and some molten metal ignites the oil, which in turn ignites the entire dock dock

Was Capt. McAllister’s spilled oil a cause in fact Was Capt. McAllister’s spilled oil a cause in fact of the dock fire?of the dock fire?

Was it the proximate cause of the dock fire?Was it the proximate cause of the dock fire?

DamagesDamagesThere are two aspects of damages that must be considered: There are two aspects of damages that must be considered: actual, physical actual, physical harmharm and the and the monetary valuesmonetary values ascribed to those harms ascribed to those harms

The first aspect is straightforward – show that you The first aspect is straightforward – show that you suffered suffered actual injuryactual injury (e.g. broken arm, burned (e.g. broken arm, burned down house, etc.)down house, etc.)

Once you prove the actual, physical harm, the Once you prove the actual, physical harm, the second aspect of damages comes into play: second aspect of damages comes into play: ““MoneyMoney claimed by, or ordered to be paid to, a claimed by, or ordered to be paid to, a person as compensation for loss or injury”person as compensation for loss or injury”– The law tries to restore the plaintiff to her pre-injury The law tries to restore the plaintiff to her pre-injury

condition using money condition using money

What Can Plaintiffs Recover?What Can Plaintiffs Recover?What do you think a plaintiff could recover if he or she proves the defendant What do you think a plaintiff could recover if he or she proves the defendant acted negligently and caused his or her harm?acted negligently and caused his or her harm?

Categories:Categories:– Direct loss – value of the loss of certain bodily Direct loss – value of the loss of certain bodily

functions (e.g. loss of a leg)functions (e.g. loss of a leg)– Economic loss – out-of-pocket costs resulting from the Economic loss – out-of-pocket costs resulting from the

injury (e.g. medical bills, lost wages, reduced earnings injury (e.g. medical bills, lost wages, reduced earnings capacity, property damage)capacity, property damage)

– Pain and suffering – value of the mental anguish Pain and suffering – value of the mental anguish plaintiff has suffered and will continue to sufferplaintiff has suffered and will continue to suffer

– There are others, but these are the main categoriesThere are others, but these are the main categories

Defenses to Negligence SuitsDefenses to Negligence SuitsAs you know, it is rare that an accident is caused solely because of one As you know, it is rare that an accident is caused solely because of one person’s actionsperson’s actions

If the plaintiff is partly at fault for his or her If the plaintiff is partly at fault for his or her injuries, what can the defendant do to reduce his injuries, what can the defendant do to reduce his or her liability?or her liability?– Contributory negligence defense: If the plaintiff’s own Contributory negligence defense: If the plaintiff’s own

negligence contributed to the harm suffered, the negligence contributed to the harm suffered, the plaintiff cannot collect plaintiff cannot collect anythinganything from the defendant from the defendant

This defense is only used in a few states and is This defense is only used in a few states and is not the law in not the law in WashingtonWashington

– Comparative negligence defense: Plaintiff’s recovery Comparative negligence defense: Plaintiff’s recovery from the defendant is reduced by the percentage that from the defendant is reduced by the percentage that the plaintiff’s own negligence contributed to the injurythe plaintiff’s own negligence contributed to the injury

Comparative NegligenceComparative Negligencepure comparative negligence jurisdictionpure comparative negligence jurisdiction

What does this mean?What does this mean?– Basically, even if the plaintiff was 90% responsible for Basically, even if the plaintiff was 90% responsible for

her own injuries, she may still recover 10% of her her own injuries, she may still recover 10% of her damages from the defendantdamages from the defendant

– Example: Scratchy sues Itchy for $100,000 for running Example: Scratchy sues Itchy for $100,000 for running him over as he crossed the street. The jury determines him over as he crossed the street. The jury determines that Scratchy was 30% responsible for his own injuries that Scratchy was 30% responsible for his own injuries because he was wearing all black and listening to loud because he was wearing all black and listening to loud music. Scratchy will recover $70,000 from Itchymusic. Scratchy will recover $70,000 from Itchy

Some states would bar Scratchy from recovering Some states would bar Scratchy from recovering if he was more than 50% responsible if he was more than 50% responsible