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Home , False imprisonment, Intentional tort, Trespass

When You Harm Others

rotecting citizens from harmful acts is basic to an orderly society. To protect citizens, governments pass making wrongful acts Pcrimes. A can be described as a wrongful act that injures or interferes with the interest of society ( in Georgia are listed in figure 15-1). breach of duty However, many acts that result in harm to others are not crimes. Accidentally hitting another car with your own is not a crime, even comparative though it could cause harm. It is a . Generally speaking, a tort is a wrongful act that injures or interferes with an individual’s person or property. A tort can be intentional or unintentional (negligence), or it can be a tort of . immunity

injunction AND CRIMES

Consider these three events:

liability 1. Mary sells heroin to Jack. 2. Steve, not looking where he is going, knocks Mrs. Frayle down. negligence 3. During an argument, Linda slaps Beth in the face. Which do you think would be a crime? Which a tort? Understand- ing the difference between crimes and torts is important because the treats them in different ways (see figure 10-1). The state has made selling heroin (event 1) a crime. Mary would be prosecuted for this crime in a criminal proceeding by a district attorney representing the people of the state. If found guilty, Mary could be fined strict liability and sent to jail. The victim of a crime is not a party to the legal action. Jack would not be suing Mary. Rather, he would be one of several wit-

LAWLAWtort TALKTALK nesses for the state in the case against her in court.

130 CIVIL LAW FIGURE 10-1

How to Tell a Crime from a Tort Court Charges If Defendant Definition Proceeding Accused Victim Brought by Loses

Tort A wrongful act that Civil Defendant Plaintiff Plaintiff Defendant pays injures or interferes damages to plaintiff. with another’s per- son or property

Crime A wrongful act that Criminal Defendant The person hurt Government Defendant is pun- the state or federal and the State of ished. May serve a government has Georgia or other sentence. Fine may be identified as a crime governmental paid to government; entity possible is made to victim.

Tort cases are heard in civil proceedings. tion by the state and a civil action by Beth, the The legal process is quite different from criminal individual who was injured. proceedings. The civil process provides a legal Why are two different legal actions against means for victims of harmful acts to be com- one wrongful act possible? In effect, pensated for the harm done to them. Event 2 is provides a way of punishing people who commit a tort. Mrs. Frayle has been injured by Steve’s crimes. It acts to protect all citizens from such act. In order to recover money for the harm or wrongdoing. Criminal law is not concerned with damage she has suffered, the civil process re- the individual victim. The law of torts, on the quires that Mrs. Frayle sue Steve. Furthermore, other hand, provides a way to compensate vic- she must bear the cost in terms of time, energy, tims of wrongful acts. and money for doing so. In reality, victims of crimes like , , In such a legal action, the victim of the tort and armed rarely sue the wrongdoers, is usually called the plaintiff. The plaintiff begins primarily for practical reasons. For instance, if the a court action against the alleged (or supposed) wrongdoer has no money or property from which wrongdoer, usually called the defendant or tort- to collect, a lawsuit would accomplish nothing. feasor. In event 2, Mrs. Frayle would be the plain- tiff. Steve would be the defendant. To win a tort case, the plaintiff must prove two things: (1) the defendant committed the tort O nly the Facts and (2) as a result of the tort, the plaintiff or the 1. What is a tort? How does it differ plaintiff’s property was injured. If a plaintiff (like from a crime? Mrs. Frayle) can prove both, she is entitled to recover money damages from the defendant to T h i n k A b o u t compensate for the injury. The defendant (Steve) 1. What advantages are there to a victim is liable, which means he is responsible for pay- of an act that is both a crime and a tort ing the damages. to having it prosecuted as a crime? to The same act may be both a crime and a initiating a civil suit as a tort? tort. Event 3 is an example of an act that is both a crime and a tort. Linda may face a criminal ac-

When You Harm Others 131 INTENTIONAL TORTS An intentional tort is a deliberate act of a per- Battery is the intentional touching of one per- son that causes injury to another’s person or son by another without (or permission). property. It is this type of conduct that may be The law assumes that every person has a right a crime and a tort. As you read, consider what to be free from unwanted, intentional physical legal rights and duties are defined by these in- contact by other people. For the purpose of this tentional torts. For example, in the first tort tort, the law also considers that any clothing a discussed, you have a legal duty not to harm person wears or objects that person holds are part of the person. another through . Similarly, you have a Every touching of a person, however, is not legal right to protection from assault. You also necessarily battery. In our sometimes crowded have a legal right to payment for damages from world, a certain amount of physical contact be- the person who harms you. tween people can’t be avoided. Consent is pre- Intentional Torts: The Person sumed in many situations. Which of the following would be an example There are seven basic intentional torts that relate of battery? to injury to the person: assault, battery, wrong- ful death, false , , ma- SITUATION 3 Susie suddenly grabs a pencil licious prosecution, and intentional infliction of out of Tom’s hand. She does not touch Tom. emotional distress. SITUATION 4 Tom is angry. He throws a heavy book at Susie. It hits her arm. Assault SITUATION 5 Jack is standing in front of An assault may be defined as a threat of bodily Alice on an elevator when it stops on Alice’s harm. The person who is threatening must ap- floor. While getting out of the elevator, Alice pear able to carry out that threat. An assault may pushes Jack slightly. also be an at ; no physical touching or injury need occur. There need only be an act that creates a reasonable apprehension (or expectation of harm) in the victim. Which of the following situations, then, would be an assault?

SITUATION 1 Waiting for the school bus, Cal says to Paul, “I am going to shoot you right now.” Paul does not see a weapon. SITUATION 2 Mel pulls a knife from his pocket. He says to Bill, “I’m going to cut you.”

In situation 1, no assault has taken place, even though there was a threat of bodily harm. There is nothing to indicate that Cal had the ability at that time to carry out the threat. However, an assault has occurred in situation 2. There, both the threat of harm and the apparent ability to A bump in a crowd is probably not battery. carry out the threat are present.

132 CIVIL LAW Battery has been committed by Susie in sit- How can the value of a life be calculated for a uation 3 because the pencil is considered to be lawsuit? A special scale, called an actuarial table, part of the “person” of Tom. In situation 4, Tom is used. This table predicts how long a particu- has committed battery. He touched the person lar person would normally live. Another scale of Susie with the book without consent. How- is used to predict how much money the person ever, there is no battery in situation 5. Jack is would have earned. presumed to have consented to some degree of Lawsuits based on the intentional tort of physical contact by standing in an elevator. Such wrongful death are rare. Remedies are usually consent is presumed in most places where physi- sought through the criminal justice system. Law- cal contact is likely. Examples would be football suits based on “wrongful deaths” resulting from stadiums, public buses, and movie theaters. unintended actions (or negligence) are more common. An example would be a suit based on Wrongful Death a death resulting from an auto accident. Another Wrongful death, as used in the law of intentional example would be a suit in which torts, may be defined as the death of a human the careless act of a physician was said to have caused by an intentional act of another. A sur- caused a death. viving relative of a wrongful death victim has a right to sue the person who committed the tort. The suit would be to recover money equal to the False imprisonment is the unlawful confinement value of the victim’s life. Survivors can sue even if to a bounded area of one person by another for the person responsible for the crime has not been any length of time whereby he or she is deprived prosecuted and found guilty in a criminal case. of his or her liberty. Actual physical restraint is not necessary for the tort to occur. If the person SITUATION 6 Hilda works at a hospital. She reasonably believes that he or she is not free to feels sorry for Sam, who has a terminal condi- leave, then a false imprisonment has occurred. tion and is being kept alive on a respirator. She Generally, the injury resulting from false deliberately unplugs Sam’s life-support system, imprisonment is emotional (resulting in, for knowing that her action will kill Sam. example, humiliation, fear, or embarrassment). However, physical injuries can occur from the ould this act be the intentional tort of restraint itself or when the person to ? W escape. In either case, the wrongdoer would be liable for all such injuries. Not only is the act the intentional tort of Which of the following would be false im- homicide, it is also a crime. Therefore, Sam’s prisonment? widow could sue Hilda to recover the value of Sam’s life, and Hilda could be tried in a criminal SITUATION 7 Sid and Ralph decide that it proceeding. would be fun to scare Jim by pretending to What if Sam asked Hilda to “pull the plug” lock him in a room. They send Jim into the because he did not want to live the rest of his life room to get a football. When he goes in, they on a respirator? The Georgia Supreme Court has slam the door behind him. They tell him the held that a patient who was rational and com- door is locked, but it isn’t. An hour later they petent to make that decision could choose to release him. end his own life.1 In this situation, Hilda would SITUATION 8 Frieda is locked in a ground not be liable to the family if she pulled the plug. floor room by Arnold. There is a large window However, she must have acted under the author- in the room. Frieda opens the window and ity of Sam’s primary treatment physician.2 escapes safely.

When You Harm Others 133 SITUATION 9 Officer Jones of the city po- In a case of libel, damage is presumed merely lice department arrests Maria with an arrest from the publication of the false statement. This warrant for a crime. Maria is found to be not distinction is based on the theory that the printed guilty of the crime. word is more harmful than the spoken word. In situation 7, Sid and Ralph have commit- People in the public eye have less protection ted the tort of false imprisonment. Jim thought against defamation than do private persons. he wasn’t free to leave. It doesn’t matter if the Truth is an absolute in cases involv- door wasn’t locked. In situation 8, the fact that ing the torts of slander and libel. In other words, Frieda found an easy and safe manner of escape if what is said is true, the person claiming that does not relieve Arnold of responsibility for slander or libel has been committed will not imprisoning her. If she had been injured when prevail. Common defamatory statements can escaping, he would be liable for the physical be statements that injury. • another person has committed a crime. In situation 9, there has not been false im- (“Lucy stole my lunch money.”) prisonment. The arrest and detention were law- • another person has committed an act that ful. What if the arrest had been unlawful—due, would make him or her a social outcast. for example, to an invalid arrest warrant? The (“Winston lies about everything.”) officer still would not be liable for the tort of • would cause a person to suffer public rid- false imprisonment. Unless their actions are icule in his or her business or profession. purposefully unlawful, police officers gener- (“Dr. James is a quack.”) ally have immunity from lawsuits when acting officially. • would cause a person to suffer public rid- icule or scorn. (“Abigail has a venereal Defamation disease.”) Defamation may be defined as an untruthful Based on what you have read, which of the statement made by one person to another about following would be defamation? a third person that damages the reputation of the third person. Defamation may be written or SITUATION 10 Warren sends a note to spoken. Defamation would occur if Carol told Grace. In it he says, “You cheated on the quiz.” her teacher that Larry had copied answers from Warren knows that what he said is not true. her tests but he had not. It would occur if a news- SITUATION 11 Tony says to Cora, “Eric is paper reported to its readers that an actor was a kleptomaniac.” Tony believes what he said is usually drunk at public occasions when the news- true, but it is not. paper knew this statement was a lie. SITUATION 12 Cora writes the school news- Slander is spoken or oral defamation. Libel paper column. She puts what Tony said about is printed defamation. In a case of slander, the Eric in the next issue of the paper. victim must be able to show actual damage as a result of the false statement. There are cer- SITUATION 13 Linda sees Jane steal Gloria’s tain situations, however, in which damages from notebook. Linda tells Gloria in front of the slander are presumed. Consider, for example, whole class, “Jane is the thief; she stole your notebook.” The school’s reporter prints the statements that a person is dishonest in his pro- quotation. fession or that a person has a socially feared dis- ease. These statements create the presumption There has been no libel in situation 10. The of emotional harm or harm to the reputation of statement is false and would injure Grace’s repu- that person. tation, but it was not published or communicated

134 CIVIL LAW to another person. In situation 11, Eric has been ciously (that is, with intent to harm). There must slandered by Tony. He may recover damages if he not be any probable cause for the charge. (Prob- can show some actual injury resulting from the able cause is defined as enough to cause slander, such as being excluded from a fraternity. a to believe that the accused Tony’s lack of or bad may re- probably committed the act charged.) The ac- duce the damages Eric would recover. However, cused must have suffered injuries, and he or she it does not excuse the harm done to Eric. also must have been found not guilty. In situation 12, Eric has been libeled by the publication of the defamatory statement. He Inflicting Emotional Distress would not have to show actual damage as he did in situation 11. The damage is presumed as a This tort may be defined as emotional distress matter of law. In situation 13, Jane has neither deliberately inflicted on one person by another. been slandered nor libeled, even though her The acts by the defendant must be extreme and character and reputation have been injured. Cer- outrageous. Also, they must be intended to cause tainly, the statement was communicated, orally emotional distress, and the plaintiff must actually and in writing, to a large number of people. How- suffer severe emotional distress. However, courts ever, the statement was true. Truth is an abso- and juries have generally been unsympathetic to lute defense. plaintiffs seeking to recover damages for this tort While reading about defamation, you may because it is difficult to prove the damage or in- have wondered about the First Amendment right jury claimed. Do you think such damages could to free speech. Doesn’t this right conflict with be proved in cases like the following? the tort principle of defamation? If so, how is this SITUATION 14 Mary is in labor and calls conflict resolved? Legal scholars have debated an ambulance to take her to the hospital to these questions for years and continue to do so. deliver her child. The ambulance arrives one In general, it is believed that the two principles hour later. The ambulance attendants refuse to do not conflict. Consider the reasons for both take her to the hospital where her personal principles. On the one hand, freedom of speech physician is waiting. Instead, they take her to is absolutely essential to maintaining a demo- a nearby county hospital, ignoring her protests cratic society. On the other hand, a person’s good and telling her to be quiet. Mary is so agitated, name and reputation are valuable. In fact, these she has a very difficult delivery. principles coexist by balancing a person’s right to free speech against another person’s right not SITUATION 15 Mike and Bob think it would to have his or her reputation wrongfully harmed. be funny to scare their elderly neighbor, Mrs. As such, one can say or write whatever he or she Jones. While she is asleep in her bedroom, wishes about another, but not if it is false and they sneak to the back door and rattle the harmful. doorknob. They tap on her window shutters and make a general disturbance outside her house. Mrs. Jones is awakened and is badly frightened. When she gets up to see about Malicious prosecution is the tort that results the noises, she is trembling so badly that she when law enforcement officers or prosecutors slips and falls on the stairs. misuse the criminal justice system to falsely ac- cuse and try an individual on charges that are Both situations are examples of claims of this fabricated. Several elements must be proved to tort that have been successful in Georgia courts. show that this tort has occurred. Someone must The ambulance attendants are liable for money have been charged and prosecuted for a crime. damages to Mary. Mike and Bob are liable to The prosecution must have been initiated mali- Mrs. Jones for her injuries and distress.

When You Harm Others 135 crops. Personal property consists of everything else, tangible or intangible (see Chapter 6 for O nly the Facts definitions of real and personal property). 1. Identify and define the intentional torts in the following situations: to Real Property a. Ken, the school tough guy, says This tort may be defined as the unauthorized he’ll beat up Zeke if he won’t give entry onto the real property of another. An ex- Ken his lunch. ample of trespass to real property would be if b. Leaving a rock concert, Bob pushes you deliberately rode your motorcycle through into Carol, nearly knocking her down. Mr. Johnson’s flower beds and damaged valuable c. Andy angrily accuses Harry of roses. You would be liable for the damages. Be- stealing his jacket. cause such a trespass is also a crime, you could d. The school paper reports that the face criminal prosecution. has taken bribes. This al- In every case involving civil trespass to real legation turns out to be false. property, it is presumed that the trespass caused e. Laura is found to have sent Joan damage. In other words, the owner of the real anonymous threats. Joan is very property need not prove there was actual dam- upset by them. age to win a lawsuit against the . In the example, Mr. Johnson would not have to prove 2. What is the difference between as- damages. He would simply have to prove that you sault and battery? came onto his property without permission. 3. Explain the differences between A person can be liable for trespass to another slander and libel. In which must actual person’s real property without even setting foot damages be shown? on it. For example, a man builds a dam on his own land, and it causes surface water to back up T h i n k A b o u t onto a neighbor’s property. In this situation, the 1. In the tort of false imprisonment, why man who built the dam may be liable for the doesn’t it matter whether a person is damages suffered by the neighbor. actually constrained? In this area of torts, money for damages is sometimes not the real object of a lawsuit. The 2. Explain the conflict between the prin- issue is more often who owns the land. Consider ciples of defamation and the right to situation 16: free speech. 3. Have you ever been the victim of SITUATION 16 Abner and Gene are neigh- a tort? Have you ever committed a boring landowners. Abner puts up a fence on tort? At the time, did you know that what he thinks is the boundary line between the act was against the law? the two pieces of land, but the fence overlaps Gene’s property by three feet.

s this infringement a trespass to real property? Intentional Torts: Property IWhat is the issue: ownership or damages? There are four basic intentional torts that relate to injury to property. They are trespass to real In this kind of dispute, both the trespasser property, trespass to personal property, conver- (the defendant, Abner) and the plaintiff (his sion of personal property, and nuisance. You will neighbor, Gene) claim to own the land. The law recall that real property is land and whatever is provides a means of peaceful settlement of these attached to or growing on it, such as houses or types of disputes. Without such means, people

136 CIVIL LAW might try to solve problems inappropriately (for Which of the following situations do you example, by destroying the fence). To resolve the think is a trespass to personal property? Which case, the court must first determine who owns the is a of property? disputed land. It must then determine whether a SITUATION 17 Gail takes Linda’s bicycle trespass has taken place. If Gene is found to own without Linda knowing it. She uses it for the land, a trespass has occurred. Gene could several hours. Then Linda sees her and takes recover money for the loss resulting from the the bicycle back. One wheel is badly dam- trespass. However, his real objective most prob- aged. ably is to secure the correct boundary line in or- der to preserve his real property. In such a case, SITUATION 18 Bob “borrows” Jim’s car the court could order the reestablishment of the without permission while Jim is out of town. boundary line between Gene and Abner. He drives it for 2,000 miles before return- ing it. Trespass to and Conversion of In situation 17, a trespass to personal prop- Personal Property erty has occurred. Gail would be liable for the Trespass to personal property occurs when there damage. If there were no damage, she would is a temporary interference with the custody or be liable for use and wear and tear. In situation possession of the personal property of another. 18, Bob’s interference with Jim’s possession may For example, say Judson’s neighbor “borrows” have been so great that it would be a conversion his car without Judson’s knowledge. That would of personal property. Bob might be liable to Jim basically be a trespass to personal property, even for the full value of the car. if Judson didn’t know the car was taken until its return. If the car was damaged, then the neigh- Nuisance bor, the person who committed the tort, called SITUATION 19 LMN Corporation dumps the tortfeasor, would be liable for the damages. its chemical wastes into the Blue River. The The amount of damages requested would be af- wastes are not harmful, but they give off a fected by inconvenience, , and loss of bad smell. The smell particularly bothers the income to Judson. residents of Riverview Subdivision. Frequently, When the interference in custody or posses- the smell makes it unpleasant to use their yards sion is of a permanent nature, then conversion and enjoy their property. of personal property occurs. This tort depends a SITUATION 20 Fritz and Drew are neighbors. great deal on the intent of the defendant. Did the Fritz works during the day. Drew works from 4 defendant intend to return the property? It also p.m. to midnight. When Drew gets home, he depends on the ability of the plaintiff to recover likes to work in his shop, where he designs and the property and, often, the amount of time the builds furniture. The noise from Drew’ sawing defendant has had the item. This tort is similar and hammering night after night prevents Fritz to the crime of by taking. from sleeping.

When You Harm Others 137 Can anything be done about these prob- SITUATION 21 Denise, who is a very ner- lems? These situations come under the tort of vous person, lives on a quiet street. The owner nuisance. Nuisance may be defined as anything of the neighboring lot decides to build a house. that causes harm or inconvenience to another. It The construction noise upsets Denise so much usually affects others’ use or enjoyment of their that she has to be hospitalized. property. frequently concern noises, smells, or lights. ould the noise be a private nuisance? There are two basic types of nuisance: public W and private. A causes inconve- nience or damage to the public as a whole. Sit- Probably not because the noise would not uation 19 is a public nuisance. When there is a harm an ordinary, reasonable person. public nuisance, citizens can ask the district at- torney to file a petition in the superior court to stop it, and the court can issue an injunction (an order to stop the activity). O nly the Facts Those who are specially damaged by the 1. John planted a hedge that extends nuisance can initiate a lawsuit to recover dam- two feet into his neighbor’s land. The ages as well as stop the nuisance. Rather than neighbor sues. What tort is involved? one person bearing the costs of a lawsuit, all What might be the reason for the those who are especially affected by the nui- neighbor’s lawsuit? sance could join together in a “class action” 2. Explain why the following would be suit against the people or group causing the public or private nuisances: (a) a nuisance. Government agencies, like the Envi- major city’s airport flight path, which ronmental Protection Agency, can also initiate has many low-flying and noisy air- actions against public nuisances harmful to the planes flying directly over a neighbor- environment. ing small town; (b) a continuously On the other hand, a private nuisance usu- barking dog. ally damages or inconveniences a limited num- ber of individuals (situation 20). One or all of T h i n k A b o u t the persons affected by a private nuisance may 1. Why is time an important consider- file a petition to stop it. They can also sue for ation in the difference between tres- the actual damages incurred. Further, most cities pass to and a conversion of personal have ordinances under which citizens can ask lo- property? Suggest the time frame you cal authorities to halt nuisances. In fact, Georgia would consider necessary for an act law states that this request should be made before to constitute conversion of property court action is sought. in the case of a car, a canoe, and a Determining what is or isn’t a private nui- chain saw. sance is not always easy because everyone has 2. Generally, what should private indi- different tastes and tolerances for inconvenience. viduals do before petitioning to halt For example, some people might be inconve- a private nuisance or suing for nienced by the nighttime rehearsals of a neigh- damages? bor’s rock band. Others might enjoy the music. 3. Which intentional torts to person To decide whether an act is a nuisance, a court or property do you think are also uses this standard: would such an act inconve- crimes? Why? nience, offend, or damage a reasonable person? Consider situation 21:

138 CIVIL LAW NEGLIGENCE person.” A breach of duty occurs when this stan- dard of care is not met. To illustrate, look at the What if someone’s person or property is harmed two situations that follow. Did negligence result because of something you do or don’t do unin- from failure to carry out legal duties? tentionally? This kind of situation is called neg- ligence. Negligence is perhaps the most common SITUATION 22 Trudy has just waxed her form of tort. It is the type most likely to result in kitchen floor. It is quite slippery when Ingrid a lawsuit. Today, the most common acts of neg- comes to visit Trudy. Unaware, Ingrid walks ligence occur in the operation of automobiles. To into the kitchen. She slips and falls. prove negligence, the plaintiff must show that the defendant had a legal duty to the plaintiff that he s Trudy negligent? or she failed to perform (breach of duty). Further- I more, the plaintiff must prove that the breach of the defendant’s duty was the “proximate cause” of the actual injury and damages suffered by the SITUATION 23 Del has a pile of leaves and plaintiff (that is, what the defendant did or did tree branches that he wishes to burn. Although not do that led to the injury or damages). the wind is blowing steadily, Del sets the refuse on fire. There is a utility building near the pile Legal Duty and Failure to Perform It of refuse that belongs to Del’s neighbor. The building catches fire from sparks carried by the What is a legal duty that one person may have wind and is destroyed. to another? A legal duty is, simply stated, that standard of care that society expects every per- as Del negligent? son to exercise for the safety and convenience of W others. Sometimes duties are imposed by statute. Standard of care is measured by the supposed Neither Trudy nor Del exercised the ordinary conduct of an imaginary “reasonable and prudent care for safety that the law expects of a reasonable and prudent person. Trudy should have warned Ingrid of the slippery floor. Del shouldn’t have burned trash on a windy day. Both would be liable for the damages caused by their negligence. It should be noted that the test of negligence is not whether the defendant believes the con- duct to be reasonable. It is whether a “reason- able and prudent person” would believe it to be reasonable. In a court case, the jury usually de- cides what the standard of care is and whether or not it has been met. Jury members must draw from their own experiences to determine what a reasonable person would do under the circum- stances of the case. The standard of care required of a defendant may be affected by who that defendant is. For example, a surgeon performing an operation is An auto accident is the most common not judged by the reasonable and prudent person type of tort caused by negligence. standard. The reasonable and prudent person is not ordinarily qualified to perform surgery.

When You Harm Others 139 Rather, the surgeon would be judged by a reason- Probably not. There must be some link be- able and prudent standard for a surgeon. tween the care or lack of care and the ultimate The standard of care required of a defendant injury (in this case, death). It would be difficult may also depend on who the plaintiff is, particu- to prove that the nurse’s actions somehow caused larly regarding the care a property owner owes the heart attack. In other words, the proximate to persons who come on to his or her property. cause of the heart attack was not the care pro- The care will depend on whether the person is a vided by the nurse or hospital. Therefore, the trespasser, licensee, or (see figure 10-2). hospital would not be liable for medical mal- practice. Proximate Cause and Actual Damage The injury must also be foreseeable for the The breach of duty (or failure to meet a legal suit to be successful. Under the law, the per- responsibility) must be the proximate cause of former of an act is liable for an injury only if the alleged injury in order for there to be negli- it was a foreseeable consequence of the act. In gence. In other words, there must be a direct link other words, a defendant would not be held li- between the breach of the defendant’s duty and able for a negligent act—even though it caused the injury suffered by the plaintiff. The question the injury—if no reasonable person could have to be asked is, “But for” the act of the defendant foreseen such consequences. Consider the situ- (that is, if it weren’t for the defendant’s act or fail- ation that follows: ure to act), would the plaintiff have suffered the injury? Consider the following situation: SITUATION 25 Bill is negligently speeding down a busy street. His car collides with a SITUATION 24 An elderly woman goes to the hospital with a stomachache. A nurse takes pickup truck parked at the curb. The truck is her temperature and vital signs. Suddenly, the loaded with dynamite for construction work. woman collapses. One hour later, she is pro- It explodes. Mary, walking on a nearby side- nounced dead of a heart attack. walk, is seriously injured. Jane, sitting next to a window in a building a block away, is cut an the hospital be sued for medical malprac- by flying glass. Alice, holding her baby several Ctice because the heart attack occurred while blocks away, is frightened by the explosion and she was in its care? drops the baby.

FIGURE 10-2 Duties of a Property Owner Person Entering Property Relationship with Owner Duty of Owner to Person

Trespasser Enters without owner’s permission. Not to intentionally create a hazard. Setting a booby trap for would be unlawful.

Licensee Enters with permission for the owner’s To warn of both concealed and obvious dangers. benefit, for example, a customer at a retail store.

Invitee Enters with permission of owner, To warn of dangers or repair them. However, the for example, a social guest. owner is not responsible for concealed and unknown defects such as an improperly installed ceiling.

140 CIVIL LAW Bill’s negligent act was obviously the cause In Georgia, an injured person may sue the in fact of all the injuries. Would he be held liable manufacturer under the doctrine of strict liabil- for the injuries to Mary? Jane? Alice’s baby? ity. Under this doctrine, the defendant does not Bill would be legally responsible for Mary’s have to be negligent. In other words, the plain- injuries. It is foreseeable that a nearby pedestrian tiff does not need to prove that the manufacturer could be injured by an automobile collision. Bill failed to perform a legal duty or use a reasonable may not be legally responsible for the injuries standard of care. The plaintiff need only show received by Jane and by Alice’s baby. Such in- that the manufacturer marketed a product that juries to persons far removed from the scene of caused injuries. Therefore, in situation 26, the an accident would not appear foreseeable as the company’s care in making the product and lack natural and probable consequence of the negli- of intent to harm would not protect the company gent act. However, that would be an issue for a from liability. Those injured could sue individ- 3 jury to decide. ually or together in a class action. They should The final required in order for the be able to collect damages. tort of negligence to be completed is actual dam- The strict liability principle recognizes the age. No matter how careless a person is, if no consumer’s right not to be hurt by a product that damage or injury results from that carelessness, is used in the manner intended. Once a product then no tort has been committed. is shown to be defective, manufacturers are ex- STRICT LIABILITY pected to provide notice of defect and recall the product. A person who disregards such a notice SITUATION 26 The Widget Company may not have a strict liability claim. manufactures a product that self-cleans bath- In some states, the seller can be sued under tubs. Homemakers across the country buy the strict liability, but that is not true in Georgia. cleaner. Unfortunately, the Widget Cleaner The seller is protected because it can be diffi- leaves a slick, invisible film on the tub surface. cult to see the defect in a product just by look- Many people . Over 200,000 law- ing at it. However, sellers can be found liable suits are initiated. The company was careful in for negligence for failing to detect or warn of a making the product. known danger. In situation 27, Ron clearly could sue the s it liable? cap manufacturer under strict liability, but would I the grocer be liable? Was he negligent? Would it make a difference if he had seen bottles with SITUATION 27 Ron purchases a bottle of these caps explode before or if it were a new kind soda pop. Before he can get the top off, it of soda pop that the store started carrying? explodes. The caps on these bottles are de- The doctrine of strict liability benefits con- fective. The cap hits him in the eye. He has a sumers by forcing manufacturers to do more re- black eye for weeks. search and set higher safety standards for their products. The costs of research (and lawsuits) an he recover damages? are passed on to consumers in the form of higher C prices.

Many times people are injured not through the direct action of another but by a product that has a defect in its design or manufacture. A legal O nly the Facts action taken to recover damages for such an in- 1. What legal duty do people have to jury is called a suit. each other?

When You Harm Others 141 2. List the four criteria for a tort of Corporations, governments, and individu- negligence. Are the criteria met in als can be held responsible for torts. Corpora- the following case? tions are creations of the law. They can sue and John’s dog, which roams around his be sued. Obviously, corporations can act only fenced-in yard, is known to bite. John through their employees. So, if injuries result does not warn the man coming to from the act of an employee on the job, the cor- plant trees in the yard. When the poration may be held liable. man enters the yard, the dog bites Governments are also creations of law. In- him. As he scrambles over the fence, juries may result from the actions of govern- the man falls, breaking his arm. He sues John. ment officials or employees. However, in regard to torts, governments have certain immunities, 3. What must the plaintiff show in a meaning they may only be held liable for certain tort of strict liability? actions (note the immunity of the police officer in situation 9). T h i n k A b o u t Georgia laws passed in 1987 provided civil 1. In some intentional torts, damage is immunity to members, directors, trustees, and presumed; it need not be proved. In unpaid officers of nonprofit charitable or govern- a tort of negligence, damage must be ment entities if they act in good faith or within proved. Why do you think the law the scope of their duties. Immunity is not avail- makes this distinction? able for willful misconduct. Health care provid- 2. How might strict liability affect the ers in charity cases also have immunity. way a manufacturer designs or makes a product? How Much Do You Ask For? One question in a lawsuit is how much the plaintiff will ask for in terms of money damages. There are two main categories of damages: actual BRINGING A LAWSUIT and punitive. Actual damages cover the injury or Who Can Be Liable? harm suffered. Actual damages include special or compensatory damages and general damages Generally, depending on the action, a child for pain and suffering. Special or compensatory younger than a certain age is not held legally damages repay the injured party for economic responsible for actions that cause harm. How- loss, including repayment for lost wages and ever, Georgia law states that a child’s parent may medical bills. These damages must be proven be liable to a person whose person or property is at trial with evidence of certain factors such as willfully injured or damaged by the child’s acts. days missed at work, earnings per day, amount of This law is intended to deter children from do- medical bills incurred, cost of prescriptions, and ing “pranks” that cause damage. amount of damage to property. General damages Children of young ages are also considered are damages presumed to have been sustained in legally incapable of negligence (or unintended an accident. For example, if you are involved in a wrongful acts) in Georgia, except when a child serious car accident, the law will presume that it commits a harmful act using an object intended caused you pain and suffering. Unlike for special for use by an adult. Cars, tractors, chain saws, damages (such as lost wages, medical bills), there and powerboats are examples of such objects. If is no exact amount for the jury to award. a child injured someone while driving the fam- are the other type of dam- ily boat, the child would have committed a tort. ages. They are awarded in order to punish the The parents would be liable for damages. defendant and deter others from causing harm in

142 CIVIL LAW similar ways. These damages are assessed when allels the loss the plaintiff suffered. However, wrongdoing is aggravated by violence, oppres- this stipulation applies only in product liability sion, malice, , or “wanton or wicked” con- lawsuits. duct by the defendant. These reforms have faced some legal chal- In the 1980s, there was some reaction to the lenges. In 1991, the Georgia Supreme Court large amounts of damages being awarded by ju- struck down a provision allowing defendants to ries to plaintiffs, particularly in medical malprac- introduce evidence of other compensation (such tice cases. Insurance premiums were raised, and as an insurance payment) for injuries except for there were organized protests by the premium death. The court ruled that neither the plaintiff’s payers and insurance industry. This outcry in nor the defendant’s wealth could be an issue. turn led to legislation being passed throughout continues to be the focus of the country. In Georgia, it resulted in the Tort debate in Georgia and elsewhere. This debate Reform Act of 1987. is especially contentious in the area of medi- What were some of the reforms made to re- cal malpractice. There are still no limits on the duce the amounts of damages? Several can be il- amount of punitive damages that can be awarded lustrated by earlier situations in this chapter: for medical malpractice claims. In some cases, this lack of limits has caused medical malprac- SITUATION 14, continued Mary sues the tice insurance costs to rise and, as a result, some ambulance attendants for intentional infliction hospitals have closed. of emotional distress. At the trial, they say they truly believed that Mary was scheduled to de- Defenses to Intentional Torts liver at the local hospital. They thought she was confused because she was in labor. The jury Up to this point, we have discussed the kinds of members like Mary; she seems sweet. They torts for which a person may sue. But what hap- don’t like the ambulance attendants who are pens to the person who is sued for a tort? There unshaven and sloppily dressed. The jury awards are three general types of defenses to torts: gen- Mary $1,000 in actual damages and $1 million eral denial, justification, and mitigation (to miti- in punitive damages. The ambulance service’s gate means to make something less severe). insurance does not cover punitive damages. The denial type of defense simply involves a defendant saying, “No, I didn’t do what the Before the 1987 law, Mary could have col- plaintiff says I did.” When this type of defense lected the million dollars. Now, however, the is employed, the jury must determine whether to law puts caps on punitive damages. Further, it believe the plaintiff or defendant. It then awards sets a higher standard of proof of misconduct. or denies damages accordingly. Mary would have to present clear and convincing To use the defense of justification, the de- evidence that the ambulance attendants showed fendant admits doing the acts complained of by malice, willful misconduct, or total lack of care the plaintiff but denies that the acts were wrong. in order for punitive damages to be awarded. For example, suppose you were being sued for battery. You might admit knocking down the SITUATION 27, continued Suppose others had joined Ron in his lawsuit, and the jury had plaintiff, but you deny that it was wrong be- awarded $200,000 in punitive damages. cause you were acting in self-defense. If the jury agreed with your defense, then the plaintiff Under the 1987 Georgia law, 75 percent of would lose. the damages awarded would go to the state and The third type of defense is mitigation. De- not to the parties. This law was passed to prevent fendants using this defense admit the conduct victims from recovering a large windfall instead claimed by the plaintiff; that is, they admit their of an amount of damages that more closely par- conduct was wrong. However, they attempt to

When You Harm Others 143 reduce the amount of damages claimed by prov- FIGURE 10-3 ing that they had no malice, bad faith, or intent : You Be the Jury to cause harm. Say you were sued by your neigh- bors for playing your stereo too loud every night. The Situation You might claim that you would have turned Frank was negligent when he placed an obstruction in down the sound if you knew it bothered them. the street. It could be readily seen only in daylight. In other words, you would claim the harm was After dark, Whitney rode his bicycle down the street. not intended. The success of your defense would He had no headlight, and he was racing at top speed. depend on whether the jury agreed with it. He collided with the obstruction and was injured. Can Whitney recover money for his injuries?

Defenses to Negligence The Law and Strict Liability Both Frank and Whitney are negligent. The rule of com- If a person is sued for money damages arising parative negligence applies. To decide how much, if any, from negligence, there are two main defenses Whitney should recover, assign a percentage of negli- available. These defenses may prevent the plain- gence to each according to the amount of fault. tiff from recovering money damages, or they Be sure the percentage totals 100. may reduce the amount of money awarded for Percentage of Negligence damages. These defenses are (1) assumption of Frank ______% + Whitney ______% = 100% the risk and (2) comparative (or contributory) negligence. Whitney’s medical expenses are $10,000. Use your per- What if the defendant can show that the centages to determine how much, if any, Whitney would recover. plaintiff knew about the danger but proceeded to act anyway? The plaintiff would not be able to recover damages for his or her injuries. This defense is called assumption of the risk. To be used, the risk must be a foreseeable one. Suppose the jury awarded Whitney $10,000 for his inju- Mitch goes to a baseball game and is hit by a ball ries but found that he was 20 percent negligent. fouled into the stands. The chance of that hap- The total award would be $8,000 ($10,000 minus pening is foreseeable. He would have assumed 20 percent). the risk. However, what if Mitch were injured In Georgia, the rule of comparative negli- by a hitter throwing a bat into the stands after gence has replaced the harsher rule of contrib- striking out? That risk might not be foreseeable. utory negligence. However, contributory neg- The batter may be liable. ligence is still used in other states. Under this Sometimes an injury is caused by the negli- harsher rule, the plaintiff could not recover any gence of both parties. Figure 10-3 illustrates this damages if he or she had been at all negligent. kind of situation. Under the rule of compara- In a strict liability case, the defendant would tive negligence, each party is assigned a percent- try to show that the product was not the cause age of the total negligence (100 percent). The of the damages or that there were no damages. plaintiff can only recover money damages if his Misuse of the product might also be claimed, al- or her percentage of negligence is less than 50 though courts have said that some misuse should percent. be anticipated. To determine the amount of an award at trial, the jury would first determine how much Abusive Lawsuits to give the plaintiff for his or her injury. The The Georgia legislature created a new tort that amount would then be reduced by the plain- may be used as a defense by plaintiffs or defen- tiff’s percentage of fault. In figure 10-3, let’s say dants. It is a tort for abuse of the judicial process.

144 CIVIL LAW It occurs when a party brings a claim or asserts 2. Describe one defense for an inten- a defense with malice and without basis for it in tional tort and one for an uninten- law or fact. tional tort. Which defense might John use (see “Only the Facts” question 2, SITUATION 28 Ben is driving along the high- p. 142)? way, not paying attention. He rear-ends Kay’s 3. How could Ben (situation 28) have vehicle. She sues for damages. Ben claims he protected himself from a lawsuit? wasn’t negligent and the accident was Kay’s fault, even though he knows that’s not true. T h i n k A b o u t Ben may be liable under this legal principle. The defense he asserted had no basis in fact. 1. Explain why corporations should be What if his defense was that Kay had a legal duty able to sue and be sued. to look in her rearview mirror every few seconds 2. “Punitive damages should not be to avoid the possibility of Ben’s negligence? That granted at all.” Why do you agree or defense would have no basis in law. There is no disagree with this statement? such legal duty. 3. List and explain two reasons why there should be tort reform in the PROTECTION AGAINST LAWSUITS area of medical malpractice. How can you protect yourself from being sued for a tort? The amount of money damages asked for can be devastating—in the thousands of dol- SUMMING UP lars. Your best protection is to exercise care in your daily activities. The law is not hard to fol- The law of torts provides a way of compensating low. It simply requires a person to behave so as people if they have been injured or their prop- not to cause injury to the person or property of erty damaged by others. It comes from common another. law, statutes, and court decisions. Although this However, you may further protect yourself chapter is based on the law of torts in Georgia, from the consequences of a negligent act with in- the general principles would hold true in other surance coverage. The two most common types states. are homeowner and automobile coverage. In- The underlying principle of the law of torts surance provides a fund of money to be used is one of the moral bases of many societies: treat if a negligent act by the insured person causes others as you would wish them to treat you. The damages. Most insurance policies do not provide rules of tort law are really commonsense stan- coverage for intentional torts that result in harm dards of conduct. By following them, we protect to a person or property. our own rights and those of others. Notes O nly the Facts 1. State v. McAfee, 259 Ga. 579, 385 S.E.2d 657 (1989). 2. See O.C.G.A. §§31-32-1–31-32-12. 1. What does it mean if a plaintiff is 3. Adapted from Justice Andrews’s dissenting opinion in awarded actual damages? Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928).

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