Torts and Damages
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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
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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
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Intentional torts carry punitive damages
Intent is to make people pay for injuries
resulting from their unreasonable acts
Four general categories of tort common in
construction
 Negligence
 Intentional tort/ Fraud
 Strict liability
 Deceptive practices
Torts and Damages
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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
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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
loss- no loss-no tort
 Causation- loss caused directly by
breach (aggravating condition can be
included, but not original condition)
can be hard to prove
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Torts and Damages
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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
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Negligence per se- violation of statute, no
proof of duty or breach required
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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
users- duty exists to subsequent
users of a product. Remodeling
industrial sites
 Liability of designers to subcontractors
and contractor differs by jurisdiction
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Majority rule- no duty exists, so no
damages can be collected from
designer except for personal injury
Torts and Damages
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California Rule
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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
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Torts and Damages
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Fraud
False representation or nondisclosure
of material fact
 With intent to deceive
 Misleading statement was relied on by
complainant
 Actual damages result
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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.
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Torts and Damages
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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)
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Torts and Damages
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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
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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
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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)
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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
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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. Tort does allow for
eliminating the incompetent, but can
be abused. Key is to find the best
balance
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