Torts and Damages
Up to now, everything discussed has related
to contract liabilities- voluntary
assumptions of obligation and risk
Tort duties are legal liabilities independent
of contract standing- apply to involuntary
assumption of liability and risk
Tortfeasor- party who breaches a tort duty
Victim-party suffering loss due to breach
Torts and Damages
Types of torts (Names differ by jurisdictionmany types not listed, all are civil matters
Negligence- unreasonable actions
Fraud- misrepresentation for value
Libel- untrue written statements causing loss
Slander- untrue spoken statements causing loss
Battery- touching without consent
Assault- threatening to touch without consent
Torts and Damages
Reasonable Doubt
Government prosecutes
Preponderance of Evidence
Jury system
2-Party suits
Punishment
Voluntary
Involuntary
No punishment
Punishment
Torts and Damages
Intentional torts carry punitive damages
Intent is to make people pay for injuries
resulting from their unreasonable acts
Our text uses four categories of tort
Negligence
Intentional tort/ Fraud
Strict liability
Deceptive practices
Torts and Damages
Negligence- failure to act reasonably
causing injury to others (most common tort)
Must prove all of the following
Existence of duty to be reasonable
Breach of that duty
Damages incurred as a result of that breach
Causation between breach and damage is direct
Torts and Damages
We all have a duty to act reasonably in certain
situations (driving, public gatherings, professional
relationships, manufacturing and selling)
Duty must be based on a specific act- can’t sue for
“general unreasonableness”
Arch/Engr has no duty to contractor, can’t sue for
tort (in general) except for things such as safety,
injury from design flaw, etc.
Torts and Damages
Breach- prove that the specific act was
unreasonable for the conditions (speeding,
yelling fire). Harder to prove than duty
Damages- injured person must prove lossno loss-no tort
Causation- loss caused directly by breach
(aggravating condition can be included, but
not original condition) can be hard to prove
Torts and Damages
Making a mistake is not the same as negligence.
Reasonableness standard protects to some degree
Misrepresentation of fact is a special form of
negligence when no reasonable grounds for
believing a statement can be found
Statement issued as fact (“this drug is safe”)
Statement is false (drug causes heart problem)
No reasonable grounds for belief (drug wasn’t tested)
Party justifiably relies on statement (party takes drug)
Damages result (Party has heart damage)
Torts and Damages
Negligence per se- violation of statute, no proof of
duty or breach required
Valid ordinance was violated
Injured party is member of protected class
Harm suffered is prevented by the ordinance
Violation of statute caused harm or damages
Party suffered loss
OSHA, ADA, EEO, building codes, etc
Currently undergoing re-interpretation
Torts and Damages
Liability of designers to subsequent usersduty exists to subsequent users of a product.
Remodeling industrial sites
Liability of designers to subcontractors and
contractor differs by jurisdiction
Majority rule- no duty exists, so no damages
can be collected from designer except for
personal injury
Torts and Damages
California Rule
Balance test under theory of negligence
Degree of certainty of harm
Foreseeability of harm
Closeness of connection between conduct and injury
Advancing policies to prevent future harm
Assignability of moral blame
Difficult to enforce
Torts and Damages
Intentional Tort (Fraud)- presence of intent
to cause injury or harm makes tort
intentional (difficult to prove intent)
Fraud (deceit, misrepresentation, false
claim) is the most common intentional tort
in construction
Torts and Damages
Fraud
False representation or nondisclosure of
material fact
With intent to deceive
Misleading statement was relied on by
complainant
Actual damages result
Torts and Damages
Deceptive practice laws- discourage fraud
and make it easier to bring the case (no
longer need to prove intent)
Deception is inherent in the act covered by
the statute
Contorts- claiming a contract breach as a
tort.
Torts and Damages
Contorts
Torts carry higher awards than contract cases
Lawyers “prefer” tort claims
Try to claim some specific action under
contract is actually a tort
Historic reluctance by the court to allow breach
of contract to be turned into a tort
Mostly for personal contracts (not construction)
Torts and Damages
Strict liability-only applied in very limited
situations such as manufacture of defective
products or practice (blasting)
Manufacturers of defective products are strictly
liable for injury IF
Flaw is present at time of sale AND
Flaw causes injury OR
Manufacturer fails to warn of risk OR
Product has correctable design defect
Torts and Damages
Strict Liability of product manufacturers is why
we have so many warning labels on products
Construction contractors are not considered
manufacturers of products
Assumption of risk- common defense against tort
in construction (and elsewhere)
Injured parties are responsible for their own injury if
they have voluntarily assume risk inherent in the
activity (sign a risk assumption to go bungie jumping)
Torts and Damages
Proximate cause damages- tort damages are
generally greater than contract damages
because they include foreseeable AND
unforeseeable damages (proximate cause)
Pain and suffering- compensation for
experience of pain and suffering over a
specified time. Difficult to assess, usually
per diem award. Includes emotional pain
Torts and Damages
Punitive damages- intentional torts allow
exemplary awards used to “make and
example” out of offender. Frequently
reduced by the court
Tort cases- McDonalds coffee, Toro
mowers, Philadelphia hospital
Calls for tort reform, resisted by trial
lawyers