UNIT 9. TORT LAW
Lead-in
1. What is a wrong?
2. Are civil wrongs severely punished?
3. What kinds of punishment can be applied to those who committed a civil wrong?
Part I. The Nature of Torts
When is a manufacturer responsible for the harm caused by its defective products? Under
what circumstances is a doctor, lawyer, or accountant liable for malpractice? Can a customer
who slips and falls in a store obtain damages from the owner? To answer these questions, we
look into the law of torts, the body of law designed to give people redress for civil wrongs other
than a breach of contract. Tort law determines when and why a person must pay compensation
for the injuries he or she inflicts on others.
The word “tort” is actually the French word for “wrong”. A tort is “a civil wrong other than
breach of contract, for which the court will provide a remedy in the form of an action for
damages”. So when one person commits a tort upon another, the injured person is entitled to
remedies under the law. The function of the court will be to provide this remedy in the form of
an action for damages, which is the main remedy for a tort, but in some cases an injunction can
be obtained to prevent repetition of the injury. The person who commits a tort, called the
tortfeasor, must compensate the victim for damages to the victim’s person (e.g., physical or
emotional injuries), property (e.g., damages to buildings or machinery), or economic interests
(e.g., interference with contract rights).
Tort law is a broad legal category. Just as there are many specific crimes, there are many
specific torts. The field of torts covers a group of civil wrongs, other than breach of contract, that
interfere with person, property, reputation, commercial or social advantage. Every tort has
certain recognized elements, facts that must be proved by the injured party to recover damages.
However there are certain elements that are common to all torts. These elements must be proved
to establish liability i.e., legal responsibility for any specific tort. These elements are:

a duty owed by one person to another to exercise due care

violation or breach of duty, i.e., failure to live up to the standard of care

injuries suffered by the victim

proximate causation of the injuries by the tortfeasor’s act
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The law has developed certain defenses – reasons or circumstances that will justify or
excuse the commission of what otherwise would be a tort. For example, a person has a privilege
or right to use force against another in self-defense. This privilege allows an individual to repel a
physical attack as long as he or she uses reasonable force. In a suit by the injured attacker, the
self-defense privilege, if established at trial by the defense, will prevent any tort recovery.
Tort liability is a matter of policy for each state to decide. State courts and legislatures
recognize new torts from time to time, apply existing torts definitions to new fact situations, and
abolish old torts as social conditions change. For example, invasion of privacy was not
generally recognized as a tort before the 1930s, but is so recognized today. Its development
reflects a change in the society from an agrarian social system to a highly industrialized, urban
society in which privacy interests are endangered. In contrast, recognized torts will be abandoned
if they become outmoded. For example, the courts have generally abolished the tort of breach of
promise to marry because it is inconsistent with modern social customs. Thus, the law of torts,
like all areas of the law, is an evolutionary body of rules and principles.
The definition of many torts closely resembles the definition of crimes. Still there is an
essential difference between them and the functions of the criminal and tort systems are also
different. A crime is an offense against society, even though it may only be directed against one
individual. As a public wrong, a crime is prosecuted by the government; and the sanction for its
commission is punishment by fine, imprisonment, or death. The purpose of the criminal system
is to protect society by punishing (and possibly rehabilitating) the wrongdoer, and thereby
deterring others (and the perpetrator) from committing similar wrongs.
In contrast, a tort is a private or civil wrong, a wrong against another individual — an
unreasonable interference with private rights — for which the injured party can sue for
damages. A tort does not affect society as a whole. It is the subject of civil law disputes between
private individuals. The civil suit is commenced by the victim, and the sanction imposed for the
commission of a tort is an award of money damages. Although tort law is also concerned with
preventing others from committing wrongs, the primary purpose of the tort system is to
compensate the innocent victim for his or her losses, not to punish the wrongdoer.
A given act may constitute both a crime and a tort. For example, the act of holding a person
hostage is both the crime of “kidnapping” and the tort of “false imprisonment”. In such a case
the government can prosecute the wrongdoer for a criminal offense. In the criminal case, the
victim is only a state’s witness. At the same time, the victim can sue the wrongdoer for damages
in a separate civil lawsuit. In such cases the defendant is both criminally liable (to a fine and/or a
jail sentence) and civilly liable (to monetary damages).
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Sometimes an individual takes an action in the law of torts because he has not gained any
benefit from the criminal prosecution. Sometimes there is no criminal prosecution because there
is not enough evidence or the matter is more of a private dispute than one involving public law
and order. And sometimes it is difficult to find a criminal law that covers a tortious act. Thus
simply entering land without the owner’s permission is not a crime under the law. It is, however,
the tort of trespass.
Active Vocabulary
tort law / law of torts
деликтное право, касающееся нарушений против
личности и имущества личности, которые влекут
материальное взыскание по иску потерпевшего
to be liable for
нести ответственность за что- либо по суду
malpractice
профессиональная некомпетентность (врача, юриста)
to give redress for smth
возмещать что-либо
to inflict injuries on smb
наносить телесные повреждения кому-либо
to provide a remedy
предоставлять средство судебной защиты
to commit a tort upon smb
совершать деликт против кого-либо
to be entitled to remedies
иметь право на получение судебной защиты
to obtain an injunction
получать, устанавливать судебный запрет
tortfeasor
правонарушитель, причинитель вреда
to recover damages
взыскивать убытки, получать по суду возмещение
убытков
to establish liability
устанавливать ответственность
to owe smb a duty to exercise
быть обязанным проявлять должную осторожность в
due care
отношении кого-либо
violation / breach of duty
нарушение обязанности
proximate causation
непосредственная причина
to develop defenses
разрабатывать систему правовой защиты
invasion of privacy
вмешательство в чью-либо личную жизнь
to prosecute smb for smth.
преследовать кого-либо в судебном порядке
to sue smb for damages
предъявлять кому-либо иск с целью возмещения
убытков
false imprisonment
незаконное лишение свободы
tortious act
действие, относящееся к разряду гражданских
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правонарушений
нарушение чужого правовладения
trespass
Vocabulary Focus
I. Give the words/phrases to the following definitions:
1.
financial compensation for loss or injury;
2.
a breach of duty towards other people;
3.
person who makes a claim;
4.
reasonably foreseeable cause of injury;
5.
physical or economic harm or loss;
6.
some of money paid as a punishment for breaking the law;
7.
an act which is against the law and which is punishable by law;
8.
having good judgment, fair and sensible;
9.
the person against whom the accusation is brought in a trial;
10. an act which infringes someone else’s right;
II. Find the phrases with the similar meaning in the text:
1. to be responsible by law;
2. to act with prudence;
3. to compensate for civil wrongs against person or property;
4. to give someone the right to repair harm or damage suffered;
5. to carry out a civil wrong;
6. violation of duty;
7. to plan and outline the way of protecting someone in court;
8. to be brought to court to answer a criminal charge;
9. to make someone decide not to do smth. for fear of being punished;
10. to start legal proceedings against someone to get compensation for a wrong.
III. Read the text and choose the word or word combination from the box to fill in the gaps:
against an individual, causes injury, an action for tort, “wrongs”, to compensate the
claimant, against society, to keep law and order, give rise to an action for a tort, of enforcing his
rights, found guilty of a crime, granting an injunction
It is very important to realize the existing differences between torts and crimes as both can be
considered 1…………... A crime is an offence 2………….., even though it may only be directed
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against one individual. A tort is a wrong 3…………..and does not affect society as a whole. The
main function of criminal law is 4………….. and protect the public. The main function of the
law of torts is to provide the individual who suffered with a way 5………….. A criminal case
will take place in the criminal courts, while 6………….. will be in the civil courts. Finally the
purpose of criminal case is to punish anybody 7…………..; the purpose of an action for tort is
8………….. or enforce his rights in some other way, such as 9…………... In some cases the
same action may be both a crime and a tort. Thus drunken driving both breaks the criminal law
and, if it 10………….. or damage to another person, can 11………….. of negligence (double
liability).
IV.Answer the following questions:
1. What areas does the law of torts cover?
2. What relief can a victim of a tort obtain?
3. What elements must be proved to establish liability for a tort?
4. What is the difference between a crime and a tort?
Grammar Focus
COMPLEX SUBJECT
As opposed to the complex subject construction with verbs in the passive voice, used to
avoid mentioning who said or thought what we are reporting, the complex subject expressing
an attitude which comes from somebody not mentioned in the sentence is used with verbs in
the active voice. The whole structure is as follows: subject + active verb + to-infinitive
(simple, perfect, continuous). The structure may be used with 2 types of verbs:
1. Verbs expressing personal attitude to facts and their evaluation: to seem, to appear, to
happen, to chance, to turn out, etc.
The contract seemed to have been properly drafted.
Large portions of the community appear to be unaware of recent tort reforms.
2. Modal phrases with “be” expressing different shades of probability or certainty: to be
(un)likely, to be sure, to be certain, to be bound.
We are certain to come to an agreement.
These objects are sure to be wanted as evidence.
V. Match the columns below to make sentences. Use the correct form of the verbs:
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1. It was very late but several
a) to be helpful.
witnesses
2. The guilt of the defendant is
b) to be a failure.
obvious
to be unlikely
3. The newspaper reported that three
c) to give any positive
to be certain
people
results.
to turn out
4. She was not in town that day, so
d) to be put to prison for the
to happen
she is
crime he committed.
to prove
5. The efforts of the police to catch
e) to be charged with theft.
the pickpocket
6. The lawyer’s legal advice
f) to be near the scene of the
crime.
7. The investigation conducted by
g) to be guilty.
one of the parties
VI. Rewrite the following sentences using the complex subject:
1. It seemed that the witness knew the accused very well.
2. It appeared that the judge was satisfied with the decision of the jury.
3. Everyone was sure he would win the case.
4. There was hardly any probability that the hearing would start on Monday.
5. There is hardly any chance that this precedent will be followed in the future.
6. It is easily proved that the defendant’s conduct was criminal.
7. There is high probability that the motorist who is speeding will be worried about being
caught by the police.
8. The motorist who is speeding may accidentally injure a person if he is negligent.
VII. Render the text into English:
Концепция деликта или гражданского правонарушения, то есть противоправного акта,
нанесшего ущерб отдельной личности, существует в большинстве современных правовых
систем. Само слово в переводе с французского означает “противоправный, незаконный.”
Это понятие нашло применение в большинстве стран с традициями общего права.
Определение
правонарушений.
преступлением.
многих
деликтов
Совершаемый
Однако
важное
очень
деликт
напоминает
довольно
различие
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между
часто
определение
является
деликтами
и
уголовных
одновременно
преступлениями
заключается в том, что первые являются предметом гражданских споров между
отдельными личностями, а последние преследуются государством. Иногда частное лицо
подает иск, основанный на законодательстве о деликтах, так как, явившись жертвою
преступления, которое преследовалось в уголовном порядке, оно не получило
материальной компенсации за понесенный ущерб. В некоторых случаях уголовное
преследование не осуществляется, поскольку отсутствует достаточное количество улик,
или дело больше касается частного лица, чем общественного правопорядка. В отдельных
случаях, если нарушение не влечет за собой уголовной ответственности, оно становится
предметом рассмотрения в деликтном праве. Так, например, простое прохождение в
частное владение без разрешения владельца не является преступлением в соответствии с
английским законодательством. Однако оно является деликтом противоправного
нарушения владения.
Additional Reading
Text 1. Read the text and choose the best answer to each question:
Class Action Lawsuits
Under the law, a class action is collectively bringing a claim on behalf of large groups of
consumers. This procedural device is used in litigation for determining the rights of and remedies
for large numbers of people whose cases involve common questions of law and fact.
This form of collective lawsuit originated in the United States and it still remains mainly a
U.S. phenomenon. However it is allowed in some European countries with civil law.
In the United States class action lawsuits may be brought in the federal court if the case
involves issues that affect proposed class members in different states and has connection with
federal law. However, such class action suits must have certain common issues across state lines.
This may be difficult as the civil law in the various states has certain differences which means
that each state’s set of claims have to be dealt with either separately or through the device of
multidistrict litigation. It is also possible to bring class action lawsuits under state law, and in
some cases the court may extend its jurisdiction to all the members of the class, including those
within the state and out of the state (or even internationally) as the key element is the jurisdiction
that the court has over the defendant.
Filing a class action means filing a suit with one or several named plaintiffs on behalf of a
supposed class. This class must consist of a group of individuals or business entities that have
suffered a common wrong. Usually these kinds of cases are connected with some standard action
on the part of a business, or some particular product defect or policy that was applied to all class
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members in a uniform matter. After filing the summons and complaint, the plaintiff usually has
to bring a motion (sometimes at the same time as filing the summons and complaint) to have the
class certified. In some cases class certification may require additional discovery in order to
determine if the proposed class meets the standards for class certification.
Upon the motion to certify the class, the defendants may express disagreement on certain
issues. The defendants may object to whether the named plaintiffs are sufficiently representative
of the class and to their relationship with the law firm or firms handling the case. The court will
also examine the ability of the firm to prosecute the claim for the plaintiffs, and their resources
for dealing with class actions. The court may require notices describing the class action to be
sent, published, or broadcast to the public to notify the potential class members.
As part of this notice procedure, there may have to be several notices, first a notice giving
class members the opportunity to opt out of the class, i.e. if individuals wish to proceed with
their own litigation they have the right to do so, if they give timely notice to the class counsel or
the court that they are opting out. Second, if there is a settlement proposal, the court will usually
direct the class counsel to send a settlement notice to all the members of the certified class and
all the members of any subclasses (that might have slightly different but uniform claims),
informing them of the settlement offer made by the defendants, and the fact that the named
plaintiffs have agreed to accept the settlement. The court will also specify the legal fees to be
paid to the class counsel as part of the settlement, which may be considerable. This fact makes
class actions appealing to many plaintiff law firms.
In federal civil procedure law, which has generally been accepted by most states, the class
action must have certain characteristics: a) the class must be so large as to make individual suits
impractical, b) there must be legal or factual claims in common, c) the claims or defenses must
be typical of the plaintiffs or defendants, d) the representative parties must adequately protect the
interests of the class. In many cases the party seeking certification must also prove e) that
common issues between the class and the defendants will predominate the proceedings, as
opposed to individual fact-specific conflicts between class members and the defendants and f)
that the class action, instead of individual litigation, is a superior means for resolution of the
disputes at hand.
The approach towards class action lawsuits has always been different. Class action lawsuits
are considered to have both advantages and disadvantages.
Some critics say that many class actions are brought by lawyers too willing to achieve the socalled coupon settlements for their clients when they can get very substantial legal fees for their
efforts. These coupon settlements (which usually allow the plaintiffs to receive some kind of
minimal benefit such as a small check or a coupon off future services or products with the
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defendant company) are also a way that the defendants forestall major liability; if a large number
of people do not litigate their claims separately, then the business is not adversely affected.
Critics also attack the institution of the class action as being a form of taxation upon large
business corporations that prevents them from aggressively pursuing innovation. This kind of
argument is generally supported by those involved in the tort reform.
However many lawyers see class actions as one of the most important legal tools to develop
in this century. Class actions make it possible for a few people to change corporate practices and
to bring wrongs to the attention of the court. The claims may result in a settlement but they
usually force the defendant business into adapting their policies to eliminate the practices that
lead to the class action. In this way all of society benefits in way that are hard to quantify beyond
the members of the class who receive compensation.
1. Class actions are one of the most important means
a) to start litigation where a certain social class will be one of the parties.
b) to protect the rights and specify remedies for a large number of people whose
civil rights were infringed.
c) to achieve certain equality of legal issue.
d) to make courts extend their jurisdiction to as many members of social classes as
possible.
2. To bring a class action lawsuit it is necessary
a) to collect the signatures of a group of individuals who were affected by the
common wrong.
b) to make the involved issue public.
c) to file a claim on behalf of class members indicating the names of one or
several plaintiffs.
d) to apply the device of multi-district legislation.
3. Certification of the class does not require determining
a) the relationship of the class members with the law firm handling the case.
b) the ability of the firm to prosecute the claim for the plaintiffs.
c) the plaintiffs’ resources for dealing with class actions.
d) the legal fees as part of the settlement.
4. The opponents of class actions put forward the opinion that class actions
a) substantially reduce the punitive damages.
b) are initiated by lawyers who only want to benefit from settlements.
c) prevent manufacturers from any attempts to pursue innovations.
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d) leave individuals no option to proceed with their own legislation.
5. It is not mentioned in the text that class actions
a) bring out significant differences existing in civil law in different states.
b) are one of the most efficient legal means of bringing wrongs to the attention of
courts.
c) help to eliminate practices leading to class actions.
d) draw public attention to destructive effects of goods produced by certain
companies.
Speaking
Find information using the Internet resources and comment on the case which constitutes
both a crime and a tort.
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Part II. Intentional Torts
Read the text and match these headings (a-h) with the paragraphs (1-8) they belong to:
a. Trespass
e. Damaging a person’s reputation
b. Assault and battery
f. Types of intentional torts
c. Classes of torts
g. False imprisonment
d. Remedies for intentional torts
h. Intentional torts
1. The law of tort protects people, their property and their reputation. A claim in tort can be
made if someone, through breach of duty or infringement of a right, injures you, your property or
your reputation. A breach (or violation) of the duty must be proved before the injured party can
recover damages for a tort. Whether there has been a breach of a tort duty is almost always a
question of fact for a jury to decide. Some torts require that the breach be intentional. In other
torts, intent is not required; it is enough if the breach occurred because someone was careless or
negligent. There is also the third group of torts where neither intent nor carelessness is required
to impose liability for a wrong. Thus torts are classified as intentional torts, negligence and
liability without fault (or strict liability).
2. An intentional tort is one in which the tortfeasor acts with intent. Intent in tort law does
not necessarily mean an evil or malicious motive or purpose, nor does it require intent to harm
or injure the victim. Intent is tortious if the tortfeasor acted with the purpose of interfering with
the rights of another or acted in such a way that an interference with rights was substantially
certain to follow from his or her actions. As a practical joke, Michelle pulls a chair from under
John as he is sitting down, causing him to fall to the floor. Michelle would have the intent
necessary for a tort, because either she intended John to fall or she knew or should have known
that his fall was substantially certain to follow from her actions. Intentional torts are considered
the most serious torts because of the purposeful action of the tortfeasor. So the legal
consequences of committing an intentional tort may be more severe than for an unintentional
tort.
3. The victim of any tort can sue for “compensatory damages” — to cover medical bills,
lost wages, mental distress, and other actual costs – which are designed to compensate the
plaintiff for what he has lost or endured as the result of the defendant’s actions.
“Punitive damages” (also called “exemplary damages”) are designed to punish the
defendant for his action. However, punitive damages are only awarded in extraordinary
situations where the plaintiff proved that the defendant’s conduct was malicious, fraudulent, or
particularly oppressive – negligence is not enough. The law permits punitive damages in order to
discourage similar acts in the future by the same defendant or other persons that is to deter others
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from such extreme misconduct. Punitive damages are usually awarded in cases involving fraud
or intentional acts.
Some tort cases also seek what the law calls “injunctive relief”. Injunctive relief involves a
court order requiring or preventing the defendant from doing or continuing to do a certain act.
This type of relief includes such things as temporary restraining orders and permanent
injunction. A plaintiff can request both injunctive relief as well as monetary damages in the
same lawsuit.
4. The most common intentional torts are: assault, battery, false imprisonment, defamation,
trespass. For some of these torts the plaintiff must prove that damage was caused; for other torts
it is only necessary to show the infringement of the right. This means that the plaintiff can claim
simply because his right has been infringed: he does not need to prove that he has suffered any
damage.
5. Assault in law is an intentional act that causes another person to be put in fear of
immediate physical harm; it is a threat against a person. This definition covers a wide variety of
acts including raising a fist, threatening with a stick, pointing a gun at someone even if it is not
loaded, throwing something at a person and even spitting at a person. Actual physical contact is
not necessary to constitute an assault. In a civil code case alleging assault, the victim must prove
that he or she was in imminent danger of injury or had reason to think so. Words alone cannot
constitute an assault.
Battery is often the continuation of an assault and so one frequently reads about “an assault
and battery”. Battery includes physical violence, an intentional or reckless application of
physical force to someone without his consent. The most obvious examples are slapping, kicking
another or hitting him with a stick or other weapon. The attacker does not have to personally
touch the other; an indirect use of force is also a battery. In the case of battery the victim can sue
the assailant for damages, and the state may also prosecute him for offence (misdemeanor). The
exception is the contact which is unintentional and may be justified. For example, when a person
acts in self-defense, there is no battery. Also when the injury is inflicted in the course of properly
conducted sports or games - boxing, for example - no battery is committed. As these two terms assault and battery - are very closely connected, the term “assault” is frequently used as a general
term for violence to a person.
6. False imprisonment is unlawful restriction of a person’s freedom of movement not
necessarily in prison. It occurs where, without a lawful reason, the claimant is prevented from
moving freely as he wishes. Any complete deprivation of freedom or movement is sufficient,
so false imprisonment includes unlawful arrest and unlawful preventing a person from leaving a
room or a shop. Damages, which may be aggravated or exemplary, can be obtained in tort and
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the writ of habeas corpus is available to restore the imprisoned person to liberty. If the defendant
has no legal reason for detaining the claimant, the court will order the defendant to release the
claimant.
7. In tort law defamation which may be either in the form of libel or slander, is making and
publishing a false statement about a person that tends to lower his reputation in the opinion of
right-thinking members of the community or to make them avoid him. The victim’s reputation
is undermined by such statements. Defamation is usually in words, but pictures, gestures, and
other acts can also be defamatory. To be legally defamatory, the material must (1) be false, (2)
be communicated to a third person and (3) bring the victim into contempt or ridicule by others.
To establish defamation, the claimant must prove three things:
- something was published by the defendant,
- the published material referred to the claimant,
- the material was defamatory that is undermining or damaging his or her
reputation.
8. Trespass refers to a direct and immediate intrusion into another person’s property entering a persons land or taking away his goods without his consent. Trespass to land is a tort,
but not normally a crime; the notice “Trespass will be prosecuted” is therefore usually
misleading. However, trespass may sometimes constitute a crime; it is a crime to trespass on
diplomatic or consular premises or premises protected by immunity; and it is a crime to enter and
remain on any premises as a trespasser with weapon of offence for which one has no authority or
reasonable excuse.
Active Vocabulary
intentional tort
умышленный, преднамеренный проступок
careless or negligent
безответственный или небрежный
negligence
небрежность, безответственность
liability without fault (strict liability)
объективная ответственность независимо от
наличия вины (строгая ответственность)
evil / malicious motive
злой умысел
compensatory damages
реальные, фактические, компенсаторные убытки
punitive (exemplary) damages
штрафные убытки; убытки, присуждаемые в
порядке наказания
to award damages
присуждать, выносить решение о возмещении
убытков
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fraud
обман, мошенничество
injunctive relief
средство правовой защиты в виде судебного
запрещения, судебный запрет
temporary restraining order
судебный приказ о временном запрещении
permanent injunction
бессрочный судебный запрет, остающийся в силе
до конца судебного разбирательства
battery
нанесение ударов, побоев; избиение
defamation
диффамация, клевета
misdemeanor
мисдиминор (категория наименее опасных
преступлений, граничащих с административными
правонарушениями)
deprivation of freedom
лишение свободы
aggravated damages
увеличенное возмещение убытков
libel
клевета в письменной форме или в печати
slander
устная клевета
to undermine / to lower smb’s
наносить ущерб чьей-либо репутации
reputation
Vocabulary Focus
I. Give the words/phrases to the following definitions:
1.
an unlawful threat of violence against a person;
2.
actual violence, an attempt to do bodily injury to another;
3.
one who is harmed or killed by another;
4.
harm done to a person’s reputation;
5.
violation of a right;
6.
done on purpose, planned;
7.
heavy damages which punish the defendant for the loss or harm caused;
8.
keeping someone wrongfully imprisoned;
9.
willful deception and dishonesty;
10. any of less serious offences.
II. Form the corresponding verbs from the following nouns:
compensation – to compensate, injury, remedy, assault, imprisonment, infliction, invasion,
trespass, violation, offender, defendant, damage, prosecution, cause, proceeding, award, harm,
liability.
14
III. Match the words to form collocations as they appear in the text. Make your own sentences
using these collocations:
1. torts
a) due care
2. intentional
b) harm
3. to commit
c) resulting from negligence
4. to cause
d) negligently
5. to fall into
e) a crime
6. to exercise
f) two categories
7. to act
g) wrongs
8. to constitute
h) torts
IV. Choose the correct answer:
1.
tort
a) an intent to do harm to another person
b) contract obligation owed to another party
c) a civil wrong which excludes breach of contract
d) an action which amounts to a criminal offense
2.
assault
a) a negligent act
b) economic loss
c) the civil wrong of inflicting actual bodily injury on another person
d) the act of intentionally placing another person in fear of bodily
injury
3.
punitive
a) damages to compensate for the injury
damages
b) damages in a civil suit that are meant to punish the wrongdoer for
causing the injury
c) minimal damages which are awarded
d) court order preventing from doing an illegal act
4.
injunction
a) a cause of actions that follows the imprisonment of a person
b) violation of a person’s rights
c) court order compelling someone not to do smth.
d) doing harm to another person intentionally
5.
false
a) arresting a person without issuing a warrant
imprisonment
b) the situation resulting from the disagreement between the judge and
the jury about the sentence
c) putting to prison for a civil wrong
15
d) unlawful confinement of a person against his will
6.
negligence
a) indifference
b) intentional misconduct
c) behavior that causes serious emotional distress
d) breach of a duty that proximately caused an injury
7.
trespass
a) the act of entering another’s land without permission
b) a motion before trial in a tort action
c) public disclosure of private facts
d) interference with the private life of a person
8.
intent
a) risky behaviour
b) wanting or planning to do smth.
c) an action that a person performs while committing a tort
d) a groundless action
V. Complete the sentences using the information from the text:
1. When a wrongdoer has injured another person by committing a tort, the victim……
2. Damages can include compensation for the repair or replacement of the involved property,
as well as for……
3. If the tortfeasor’s conduct was willful, malicious the court may impose punitive damage
which are designed.……
4. If a tort involves a continuing problem the injured party may ask……
5. An injunction is a court order……
VI. Read the text and choose the word or word combination from the box to fill in the gaps:
Slander and Libel
defamation, durable form, common law, offending material, in the form, libel, not edited,
publication, fleeting form, to distinguish between, an Internet based community, slander
The 1 …………..origins of defamation lie in the torts of 2………….. (harmful statement in a
transitory form, especially speech) and 3………….. (harmful statement in a fixed medium,
especially writing but also a picture, sign, or electronic broadcast), each of which gives a
common law right of action.
“4 …………..” is the general term used internationally, and is used in this article where it is
not necessary 5………….. “slander” and “libel”. Libel and slander both require 6…………...
16
The fundamental distinction between libel and slander lies solely 7………….. in which the
defamatory matter is published. If the 8………….. is published in some 9………….., as by
spoken words or sounds, sign language, gestures and the like, then this is slander. If it is
published in more 10………….., for example in written words, film, compact disc (CD), DVD,
blogging and the like, then it is considered libel." The debate whether Internet blogs or Bulletin
Boards are publishers is a key subject being addressed, whereas 11………….. is more akin to
conversations in a bar or pub, with content being written as an ongoing dialogue which is
generally 12………….. or regulated such as in the publishing industry.
VII. Answer the following questions:
1. What distinguishes intentional torts from other torts?
2. What is the difference between “compensatory” and “punitive” damages?
3. What is injunctive relief?
4. What are the most common intentional torts? Classify them.
5. What is the difference between slander and libel?
6. What forms can libel take?
VIII. Render the following text into English:
Диффамация – это распространение порочащих сведений. В отличие от клеветы при
диффамации порочащие сведения могут
не носить
клеветнического характера.
Диффамация может выражаться в письменной (пасквиль) или устной форме (устная
клевета). Под “письменной “ формой подразумевается распространение порочащих
сведений в любых средствах массовой информации. Для возбуждения дела по факту
диффамации истец должен обосновать три утверждения:
- данный материал относится лично к нему (факт идентификации)
- материал был опубликован (факт публикации)
- материал носит порочащий характер (факт диффамации)
Под “публикацией” подразумевается передача порочащих сведений лицам или лицу,
помимо опороченного человека. Если эти сведения указаны в письме последнему, факт
диффамации отсутствует. Однако если письмо пришло на фирму, где этот человек
работает, и с ним ознакомились его коллеги – диффамация налицо.
Порочащей считается информация, подрывающая репутацию человека в глазах других
людей и унижающая его достоинство.
17
Additional Reading
Text 1. Read the text and choose the best answer to each question:
Fraud
Fraud is an intentional deception or a dishonest scheme used to take deliberate and unfair
advantage of another person. Courts have distinguished two types of fraud: actual
(фактический) fraud and constructive (подразумеваемый) fraud. Actual fraud is intentional
criminal deception for the purpose of inducing another to part with something of value, to
acquire something of less than apparent value, or to surrender a legal right. Schemes specifically
intended to cheat someone, such as selling shares in nonexistent plots of land, are actual frauds.
Constructive frauds are words, acts, or omissions that tend to mislead or deceive someone or
violate a confidence but that are not necessarily of malicious intent. Selling a house while
forgetting to mention a permanently malfunctioning heating system is an example of
constructive fraud.
When fraud occurs in a contractual setting, the victim has the option to sue for damages or
cancel the contract. The effects of fraud and misrepresentation on commercial transactions are
discussed in connection with the law of contracts. Here fraud is examined as a tort giving rise to
damages for personal or economic harm. Usually, the victim of fraud may sue the wrongdoer and
recover the amount of damages caused by the fraud. To recover in an action for the tort of fraud,
sometimes called deceit, the plaintiff must prove the following elements:
• a false representation of material fact
• knowledge that the representation was false
• intent to induce another to act
• justifiable reliance on the representation
• injury resulting from such reliance
The first three elements focus on the defrauder, the last two on the victim.
The essence of fraud is deceit by one person which generally takes the form of a
misrepresentation of fact. A person can misrepresent facts by oral or written statements or by
conduct. For example, turning back the odometer of a car is a misrepresentation by conduct.
For an act to constitute fraud there must be a misrepresentation of a material fact. A fact is
something that exists now or in the past; material facts are those that would affect the person's
decision in a particular transaction. For example, a statement by the seller of a retail store
concerning the profits of the business is a representation of past or present facts which would be
material to a buyer’s decision to purchase the business. To establish fraud, the plaintiff must
18
prove that the defrauder made a statement knowing that it was false or not believing that it was
true and intended to induce another to act upon it.
Fraud does not generally include a false statement of opinion, of value, or of law. Sellers of
goods often make a statement such as “This is the best television on the market” or “My house is
worth $100,000”. The law treats such statements as the seller's opinion only, not a statement of
fact. Future expectations are also not considered statements of fact. Thus, a prediction — such as
“This business will be profitable” — is not a statement of fact.
However, a person may be held liable for misstatements of opinion, value, or law where it is
reasonable for the other party to rely on the statements. One such situation is where one of the
parties is an expert or claims to have special knowledge or competence in a particular field.
Thus, the opinion of a real estate broker as to the value of land or the opinion of an attorney upon
a point of law will be considered a statement of fact.
Fraud can also take the form of a concealment of material facts. Concealment occurs when a
person takes active steps to hide information or facts from the other party. This is to be
contrasted with the failure to volunteer information to the other party. Historically, silence, or a
failure to disclose facts of which one has knowledge, was not considered fraudulent. In
negotiating a contract, the law did not generally require one party to fully disclose information to
the other party. Today, however, a growing number of exceptions to this general rule reflect
increasing concern for the consumer's right to full and accurate information and for ethical
behavior in the marketplace. Under certain circumstances a duty of disclosure is imposed in sales
transactions where one party has knowledge of latent or hidden defects in the property for sale.
For example, suppose that in a real estate transaction the seller's house has a major structural
defect in the foundation and the seller knows about it. If the buyer is not aware of the condition
because it is not visible or apparent during his or her inspection of the house, the seller would
commit fraud if the house is sold without disclosing this condition to the buyer. However, a party
is not required to disclose facts that are obvious or that could be discovered by reasonable
inspection.
To recover damages the defrauded party must establish that his or her reliance on the
misrepresentations of the defendant caused personal harm or economic losses. In the typical
fraud case the plaintiff has been induced to purchase property or services. Because of the
misrepresentations, the property or services are not worth the goods, money, or services
exchanged for them, resulting in economic loss to the plaintiff. The plaintiff can recover
damages, called direct damages, for this economic loss. In appropriate cases the plaintiff may
also be entitled to special damages — indirect losses caused by the fraud that are foreseeable,
19
such as the cost of renting a car when a defective automobile breaks down. Punitive damages are
also recoverable when the fraud is willful, malicious, or particularly oppressive.
1. Fraud is an intentional deception aimed at
a) undermining a person’s reputation in the opinion of right-thinking members of the
society
b) direct interference with the use or enjoyment of someone’s legal rights
c) making use of another person in an unfair, dishonest way
d) taking another person’s property, money, etc. and using it as if it were one’s own
2. When the fact of fraud is stated, the victim may bring a suit against the wrongdoer
a) to make the fact known to public
b) to recover damages caused by the fraud
c) to prevent the other party from learning important facts
d) to avoid the effects of fraud
3. Among the elements which the plaintiff must prove to recover damages the text doesn’t
mention
a) misrepresentation of a material fact
b) understanding that the representation was deceitful
c) reasonable reliance on the facts presented
d) infringement of his/her natural rights
4. Concealment of material facts implies
a) the failure to inform the other party about some facts
b) taking measures to prevent information from being known to other people
c) showing increasing concern for the other party’s rights
d) failure to carry out the duty of disclosure
5. To prove that the defrauded party suffered losses, he/she must
a) hold the other party liable for misrepresentation
b) have specific knowledge or competence in a particular field
c) negotiate the matter with the other party
d) establish the fact of full reliance on the misrepresentation which led to personal harm
and economic losses
Speaking
Read the following case of a fraud claim, Green v. Geer, in connection with the concealment
of a latent defect in a house put up for sale:
20
Ernest and Phyllis Green purchased the house of Paul and Susan Doleshals. Don Geer was
the real estate agent for the Doleshals in the sale. Prior to the sale, the Greens advised John
Barnes, a salesman for Geer, they would not buy a house unless it had a dry basement. When
they viewed the Doleshal house, there was a puddle of water in the basement. The Doieshals and
Barnes represented to the Greens that the water problem was caused by settling of the basement
window wells and advised them that the problem could be solved by terracing the yard so the
water would drain away from the windows. A clause was inserted in the real estate contract that
called for the terracing of the front yard by the Doleshals.
Within a few days of the Greens’ moving into the house, the basement water problems
reappeared in spite of the reterracing of the lawn. The water came from the seam between the
floor wall and from a crack in the floor.
The Greens sued the Doleshals and Geer for fraud. Evidence presented at trial established a
major problem with water leaking into the Greens’ basement; moreover, the Doleshals knew the
problem was not simply leaking window wells, yet they failed to reveal the gravity of the
problem to their agent or to the Greens. The trial court found for the Greens and awarded them
judgment in the amount of $4,835 for basement repair and loss of goods. The Doleshals and
Geer appealed.
Using the above-given information, decide what might be the grounds for the appeal and who
should win the lawsuit.
21
Part III. Negligence
Most people do not intentionally inflict harm on others. However, a person who causes injury
to another without intending to do so, can be liable for the tort of negligence which is the
broadest area of liability for the unintentional infliction of harm and the most common tort.
Negligence is based upon a person’s failure to exercise sufficient or due care in his or her
conduct for the protection of other people when there is a foreseeable risk of harm to them.
Intent is not required in this kind of tort, only carelessness. The tort of negligence may be
illustrated by the following comparison. A person who intentionally drives a car into a pedestrian
is liable for a battery. One who carelessly drives a car at an excessive rate of speed and cannot
stop it in time to avoid a collision with pedestrian commits negligence.
Like in other torts to establish negligence, a plaintiff must prove four elements:
• duty — the defendant owed a duty to exercise care for the protection of the plaintiff.
• breach of duty — the defendant failed to exercise due care, i.e., breached the duty owed to
the plaintiff.
• causation — the defendant's breach of duty was the actual and proximate cause of the
plaintiff's damages.
• damages — the plaintiff suffered actual loss or damage.
The first element of negligence is the duty of care, which requires that a person acts with the
care and good judgment of a reasonable person so as not to cause injury to others. In general,
the common law imposes a duty of care whenever a person’s conduct creates a foreseeable risk
of harm to others. For example, if a person cuts down a large tree in his backyard, it may fall on
his neighbour’s house. Because his actions create a risk of property damage or personal injuries,
he is under a duty to exercise due care for the protection of his neighbour. By contrast, a farmer
who cuts down a tree would not have a duty to exercise due care for the protection of a
neighbour who lives several miles away, because the farmer’s action does not create a
foreseeable risk of harm to the neighbour’s person or property.
There are, however, some individuals to whom a different degree of care is applied.
Generally children under seven years of age are presumed incapable of negligence. Older
children are only required to act with that care which a reasonable child of like age, intelligence,
and experience would act. If, however, a child undertakes an adult activity, such as driving a car,
the child is held to the adult standard.
The plaintiff must show that the defendant breached the duty. A breach of duty owed to the
victim occurs if the tortfeasor has not met the appropriate standard of care under the
circumstances. To determine if the tortfeasor has met the standard of care, the court uses the so22
called reasonable person test: the actions of the tortfeasor are compared with those of a
reasonable person in a similar situation. This test is considered to be objective.
To hold the tortfeasor liable, the plaintiff must prove that the tortfeasor's negligence was the
cause of personal injury or property damage. Sometimes the cause is obvious, as where the
tortfeasor carelessly drives a car and hits the plaintiff. But at other times, determining the cause
of an injury is more difficult.
The negligent conduct must be the actual cause of the plaintiff’s injury. A plaintiff
establishes actual cause by proving that the injury would not have occurred without the
negligence of the defendant. If the plaintiff’s injury would have occurred without the defendant’s
negligence, the negligence is not the actual cause of the injury. Dan drives his car knowing that it
has defective brakes. A child suddenly darts directly in front of the car and Dan’s car strikes and
injures the child. If Dan would have hit the child even if the car had good brakes, his negligence
is not the actual cause of the child’s injury.
When the amount of causation is great enough for it to be recognized by the law, it is called
proximate cause. Generally proximate cause exists when there is the connection between the
unreasonable conduct and the resulting harm that is it is foreseeable that a particular breach of
duty will result in a particular injury.
The harm suffered as a consequence of another’s negligence may be physical (personal
injuries) or economic (financial loss or property damage). In a personal injury case, for example,
the plaintiff may recover damages for lost wages, permanent disabilities, and pain and suffering.
The courts are reluctant to award damages where the plaintiff’s injury is limited only to
mental distress. The major objection to recovery for negligent infliction of emotional distress is
the danger of fictitious claims. In this case the courts permit the plaintiff to recover damages for
negligently inflicted emotional distress only if the defendant’s act caused immediate physical
consequences to the plaintiff, such as a nervous disorder, or caused mental distress followed by
physical consequences.
At common law, there were two major defenses to the tort of negligence: contributory
negligence and assumption of the risk. However today courts have adopted a system of
comparative negligence under which damages are apportioned according to the relative fault of
the parties.
The doctrine of contributory negligence involves the failure of the plaintiff to exercise due
care for his or her own safety which becomes a contributing cause of the plaintiff’s own injury.
At common law, contributory negligence was a complete bar to plaintiff’s recovery—a
negligent defendant was not liable to the plaintiff if plaintiff was in any way contributory at
fault. However, the courts have developed exceptions and modifications to eliminate some of the
23
harsh consequences of the rule. Thus a negligent plaintiff can recover damages from the
defendant if the defendant had an opportunity to avoid the accident by exercising reasonable care
but failed to do so. For example, a pedestrian who carelessly walks across a street can hold a
negligent driver liable if the defendant had the last clear chance to avoid the accident.
Another defense to negligence is assumption of the risk, which involves the voluntary
exposure of the victim to a known risk.
The doctrine of comparative negligence requires courts to weigh the relative degree of
wrongdoing in awarding damages, and to assign damages according to the degree of fault of
each party. Instead of being able to recover nothing, the plaintiff is awarded damages that are
reduced in proportion to the extent of the plaintiff’s own negligence. Comparative negligence
requires the judge or jury to determine the relative fault of the parties and apportion damages
between the plaintiff and the defendant according to the fault of each. Thus, if the defendant is
found to be 75 percent at fault and the plaintiff is found to be 25 percent at fault, the plaintiff will
recover only 75 percent of his or her monetary damages.
Active Vocabulary
foreseeable risk
предвидимый, предсказуемый риск
causation
причинность, каузация (действие, приводящее
к результату)
actual cause
фактическая, действительная причина
good judgment
рассудительность
reasonable person
здравомыслящий человек
to hold the tortfeasor liable
обязывать правонарушителя нести
ответственность
consequence of smth
последствие чего-либо
infliction of emotional distress
причинение эмоционального расстройства,
нанесение моральной травмы
contributory negligence
встречная вина, вина потерпевшего в форме
небрежности
assumption of the risk
принятие на себя риска
comparative negligence
относительная небрежность, совместная вина
to be a complete bar to smth
являться абсолютным препятствием чемулибо
to be at fault
быть виноватым
24
exposure to a known risk
подвержение известному риску
to weigh the relative degree of
взвешивать, оценивать относительную
wrongdoing
степень тяжести правонарушения
to apportion damages between smb
распределять ущерб соразмерно степени вины
according to the fault
Vocabulary Focus
I. Give English equivalents to the following word combinations using active vocabulary:
относительная небрежность; встречная вина; разглашение сведений, позорящих другое
лицо; судебный запрет; нарушение личной жизни; правовая обязанность; клевета в
письменной форме или через печать; небрежность; непосредственная причина; убытки,
присуждаемые в порядке наказания; клевета в устной форме; невыполнение обязанностей.
II. Complete the table with the related forms of the words. Put the stress mark in front of the
stressed syllable. The first one has been done for you:
harm
`harmful
tort
injury
libel
action
damage
liability
slander
defamation
malice
III. Match the terms to their definitions:
1. damages
a) added damages intended to punish or make an
example of the defendant
2. negligence
b) monetary compensation for loss or injury
3. comparative negligence
c) the system in which damages are awarded in
proportion to the plaintiff’s own negligence
4. contributory negligence
d) causing injury by failing to act as a reasonable
25
person
5. duty of care
e) the system in which the recovery for the loss is
barred if the plaintiff is partially at fault
6.
punitive
(exemplary)
damages
f) moral or legal obligation which everyone has in
order not to act negligently
IV. Read the text and choose the appropriate word combinations from the box to fill in the
gaps:
to bring a civil action, to sue for breach of contract, more advantageous, the breach of a
duty, caused damage, give rise to civil liability, the standards of the reasonable man
Negligence is a tort consisting of 1………….. of care resulting in damage to the plaintiff. In
the sense of carelessness this tort does not 2………….. unless the defendant’s failure to conform
to 3………….. was a breach of duty of care owed to the plaintiff, which has 4………….. to him.
Negligence can be used 5………….. when there is no contract under which proceedings can be
brought. Normally it is easier 6 ………….., but this is only possible when a contract exists.
Generally, fewer heads of damage can be claimed in negligence than in breach of contract, but
the rules limiting the time within which actions can be brought may be 7………….. for actions
on tort for negligence than for actions in contract.
V. Answer the following questions:
1. What is negligence?
2. What are the elements of negligence?
3. What defenses to the tort of negligence are used?
4. When is comparative negligence involved?
VI. Render the following text into English:
Существуют два основных вида гражданских правонарушений: умышленные и
совершаемые
по
неосторожности
(небрежности).
Правонарушение
признается
совершенным умышленно, если лицо его совершившее, сознавало противоправный
характер своего действия (бездействия), предвидело его вредные последствия и желало
наступления таких последствий или сознательно их допускало, либо относилось к ним
безразлично. Главным элементом умышленного проступка является намерение или
умысел причинить вред другому лицу.
26
Правонарушение признается совершенным по неосторожности, если лицо предвидело
общественно
опасные
последствия
своего
поведения,
однако
легкомысленно
рассчитывало их избежать, проявив, таким образом, недостаточную осмотрительность в
поведении, либо не предвидело общественно опасных последствий своих деяний, хотя
могло и должно было их предвидеть. При вине в форме неосторожности в поведении лица
отсутствуют элементы намеренности: оно не направлено на сознательное нарушение
обязательства, однако в нем отсутствует необходимая для надлежащего исполнения
обязательства осмотрительность.
Неосторожность встречается реже, чем умысел, однако по своим последствиям
неосторожные действия (особенно связанные с использованием некоторых видов техники,
атомной энергии и т.д.) могут быть не менее опасными, чем умышленные.
Additional Reading
Text 1. Read the text carefully and decide whether the statements below are true (T) or false
(F). Give reasons for your decisions:
Liability without Fault
There are situations where a person may be held liable for injuring another even though the
person has no intent to injure anyone and, in fact, acts with the utmost care to prevent harm to
others. This is called liability without fault or sometimes strict (absolute) liability. Although the
conduct of the one causing injury is blameless, the law allocates the risk of loss to the defendant
for reasons of social policy. Strict liability makes the defendant liable not on the basis of
provable fault, but rather on the basis that the defendant engaged in a particular activity, which
resulted in injury. In strict liability, proof of both the activity and the injury substitutes for proof
of a violation of a duty. For example, the law imposes strict liability on a manufacturer of a
detective product to protect consumers and to require product sellers to bear the social costs of
products they produce. There are three major areas of liability without fault: strict products
liability, liability for injuries from abnormally dangerous activities, and liability for injuries by
animals.
Strict Products Liability. The sale of goods which are unreasonably dangerous gives rise to
strict products liability. The law of products liability is complex and is particularly important to
manufacturers and other businesses that sell or lease goods.
Every year, thousand of consumers suffer serious injuries from defective products. Many of
these injuries could be avoided if the manufacturers or distributors of these products took
additional steps to ensure consumer safety. The damages the consumer is entitled to receive may
27
include compensation for medical expenses, lost wages, loss of physical capacity, pain,
suffering, and mental anguish. Punitive damages are also available in many jurisdictions to
punish defendants in those cases involving particularly egregious conduct which demonstrates a
reckless or wanton disregard for the safety of the public.
The rule imposing liability without fault for defective products provides as follows: “One
who sells a defective produce that is unreasonably dangerous is liable to the ultimate user or
consumer if the seller is engaged in the business of selling such a product and the product
reaches the user or consumer without substantial changes in the condition in which it is sold”.
A major reason for adopting this rule of liability without fault is social policy. The courts
have repeatedly stated that the risk of injury from defective products should be borne by the
manufacturer or seller, who can insure against losses and distribute the cost to the public as an
expense of doing business.
Under this rule, the plaintiff must prove that the product is unreasonably dangerous, that is
the product does not meet the reasonable expectations of the ordinary consumer or user as to its
safety. The plaintiff need not prove that the seller was negligent, and, in fact, the seller may be
liable even though he or she exercised all possible care to prevent harm to others. Product can be
unreasonably dangerous due to a defective design, manufacturing defect or a labeling defect. A
design defect occurs when the entire product is defective in the manner in which it was designed,
that is the entire line of products produced by the manufacturer is unreasonably dangerous. The
product may be unreasonably dangerous because of a manufacturing defect which occurs when
the manufacturer fails to make the product in accordance with plans and specification set forth
for the product. The actual design of the product might be flawless, but, one or more of the items
is dangerously defective because it was made improperly. Finally, the product may be
unreasonably dangerous due to inadequate instructions or warnings regarding the use, operation,
maintenance or cleaning of the product.
Generally, in a product liability action, the consumer who has been injured by a defective
product should seek compensation from not only the manufacturer of the product, but also all
other entities responsible for placing the defective product on the market. All business sellers in
the chain of distribution of a product, including the maker of a defective component part, the
manufacturer of the product, the wholesaler, and the retailer, are liable for the plaintiff's injuries,
even if they were not negligent in failing to discover the defect. One who knows that the product
defect exists, should not have allowed the defective product to be marketed. By allowing the
defective product to enter the market, he has breached his duty. Courts recently have extended
strict liability to commercial lessors, businesses engaged in the leasing of products. Thus, an
automobile or equipment rental business is liable without fault for injuries caused by a defect in
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the goods leased. The courts have also allowed persons other than users and purchasers (such as
family members, guests, or mere bystanders) to recover damages for injury resulting from a
defective product when in their view the injury was foreseeable. However, the plaintiff can
recover only for physical injury or property damage caused by the dangerous product, not
economic losses (e.g., lost sales or profits caused by defective equipment).
Assumption of risk and unforeseeable misuse of the product are defenses in a strict product
liability lawsuit. Manufactures, distributors, and retailers have a duty to guard against injuries
likely to result from the foreseeable use of the product. But since it is possible that certain
products will be misused by customers, the defendants also have a duty to guard against those
injuries that result from any foreseeable misuse of the product that could have been reasonably
anticipated. The defendant may assert that the plaintiff made an abnormal use of the product
which the defendant could not reasonably foresee, such as using a glass bottle to hammer a nail.
Similarly, a plaintiff who has knowledge of dangerous defect but continues to use the product
may be guilty of assumption of risk. The plaintiff's careless use of the product or failure to
inspect the product for defects is generally not a defense. However, comparative negligence rules
can be applied to strict products liability actions.
*strict product liability – ответственность за качество товара
1. Liability without fault makes the defendant liable on the bases of engaging in a
particular activity which led to the injury.
2. Consumers as well as manufactures are liable for injuries from defective products.
3. If the product does not meet the reasonable expectations of the ordinary consumer
as far as its safety is concerned it is a ground for calling it unreasonably dangerous.
4. Under the law only the manufacture is responsible for placing the dangerous
defective product on the market.
5. The law makes it possible for the plaintiff to recover only for physical injury or
property damage caused by the dangerous product, not economic losses.
6. Knowing that the product defect exists and allowing the defective product to be
marketed means a breach of duty by those who should not allow the defective product to
be distributed on the market.
Text 2. Read the text about two other areas of liability without fault and complete the spaces
using the sentences which are given below. There is one extra sentence which you do not need
to use:
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Besides strict product liability there are two other areas of liability without fault.
Abnormally dangerous activities. As a general rule, one is liable without fault for injuring
the person or property of another by an abnormally dangerous activity. Typical examples of
abnormally dangerous activities are blasting in a residential neighborhood, crop dusting near
livestock, storing quantities of explosives in the heart of a city, and drilling an oil well in a
populated area. 1………….. They generally cannot be conducted without injury to persons or
property regardless of the level of care taken by the defendant. Considerable danger remains
even after all reasonable care has been used to confine the effects of the blast. Moreover, people
who are injured or suffer property damage as a result of vibrations from blasting can do little
either by taking greater care or by altering their activity to avoid or reduce damage.
On the other hand, the courts have held that the following are not abnormally dangerous:
storing gasoline in a service station, maintaining an ordinary fire in a factory, and stocking a
small quantity of dynamite for sale in a hardware store. A person who engages in these activities
is not liable without fault for injuring another. 2………….. Judging by the number of cases, the
most common example of an ultra hazardous activity is blasting with explosives.
An activity may be abnormally dangerous at one point in time, but lose that character because
of advances in technology or changes in common usage. For example, in the early decades of the
twentieth century, flying an airplane was considered an abnormally dangerous activity, Airplane
owners traditionally were held strictly liable for damage caused to people or property on the
ground. As flying became both an established and a relatively safe activity, the likelihood that
strict liability for ground damage would reduce the amount of flying, and with it the amount of
ground damage, fell. In most states today, because of the safety of modern airplanes, the owner
or operator of an airplane is held liable only when negligence is proved.
The defendant may assert the defense of assumption of risk and prove that the plaintiff
voluntarily exposed his or her person or property to the risk from the abnormally dangerous
activity. Also, statutes ordinarily immunize persons and firms from liability for laying gas or
electric lines in public streets or doing blasting for the state, provided they are not guilty of
negligence. 3…………..
Liability for injuries by animals. Liability for the damages caused by a person's animals
depends upon a number of factors, but an important one is whether the animal is wild or
domesticated. The owner is strictly liable for injuries inflicted by a wild animal, an animal that is
dangerous by its nature and incapable of being domesticated. Such animals include lions, tigers,
bears, elephants, and wolves. As a general rule, liability is absolute even though the animal has
been raised as a pet and has shown no outward signs of being dangerous.
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A different common law rule pertains to domestic animals and domesticated wild animals
that normally are not likely to injure people. 4…………... Domestic animals include dogs, cats,
sheep, horses, and cows. Some courts have held that deer and monkeys are wild animals capable
of being domesticated. In many states the legislatures have enacted special statutes which hold
an owner strictly liable for injuries from a dog, regardless of the owner's knowledge or prior
warning.
In most states, the owner of an animal that is likely to roam and injure the person or property
of another is liable without fault for damages inflicted when the animal enters upon another's
land. Such animals include cattle, horses, sheep, hogs, turkeys, chickens, and most wild animals,
since their natural tendency is to escape.
In an action for injuries inflicted by an animal, the defendant may assert assumption of risk as
a defense. 5………….. To avoid liability for a vicious watchdog, a landowner must post
adequate warnings of the dog's presence. A “Beware of Dog” sign may not be adequate to warn
someone that the dog is vicious and not just a dog that barks at people. In most states the
defendant is not allowed to assert contributory negligence as a defense, but comparative
negligence is applied in some states.
1. If the plaintiff voluntarily exposed himself or herself to a known risk, the owner is not
liable.
2. In general, however, the plaintiff's contributory fault is not a defense.
3. Moreover it determines the extent to which the activity is not a matter of common usage.
4. Such highly dangerous activities are inappropriate or unusual for that particular place.
5. However he may be liable for the tort of negligence if the person fails to exercise due care.
6. The owner is liable for injuries inflicted only if the owner knows, or has reason to know, of
a dangerous propensity in the particular animal.
Text 3. Read the text and match these headings (a-f) with the paragraphs (1-6) they belong to:
Competitive Torts
a. Disparagement of business property
d. Wrongful entry into business
b. Defamation of a business
e. The nature of competitive torts
c. Unfair trade practices
f. Interference with business relations
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1. In free enterprise economy, a businessperson or firm is not liable for economic harm to
competitors caused by legitimate price and product competition. Thus, manufacturers and other
sellers can lawfully compete by improving their products, promoting their sale, and building
customer satisfaction and brand loyalty. The law of competitive torts* provides a remedy only
when the business methods or practices are “unfair” or “improper”. It happens when a business
engages in fraudulent marketing as by adopting a product name so similar to one already used by
a competitor that a purchaser can not easily distinguish between the products of the two
companies. Thus, the manufacturer of “M & M” candies has a legal remedy if a competitor
markets a similarly packaged candy under the name “M & N”. Such deceptive marketing of
goods harms not only the manufacturer, but also consumers who are misled as to the maker of
the candy. Society has a substantial interest in preventing such harmful practices and thereby
maintaining free and fair competition in the marketplace.
2. A person may engage in any business he or she chooses and may compete with other
businesses for customers. Unless a new enterprise stoops to improper business practices, it is not
required to account for the losses it inflicts on a competitor because of the new enterprise's
products. However, laws restrict the right to engage in a particular business, trade, or profession.
Thus, when a person enters a particular trade or business not for economic reasons, but rather to
inflict harm on another, this constitutes a tort — i.e., the wrongful entry into business for which
the plaintiff can recover damages. Laws may also restrict entry a business or a profession by
requiring applicants to meet specific qualifications or be approved by an examining board. For
example, proof of qualification is required before someone can practice medicine or law, or
become a real estate broker.
3. People use contracts to establish their understandings when they make a business deal.
Under the law of contracts and sales, if either of the parties fails to perform the contract
(breaches it) the other has a right to sue for the resulting damages. However the contractual
relationship between the parties to the contract can become a subject of interference by outsiders
either during the process of making the contract or during the process of performing it after it is
made. The right to make a contract and to have it performed is necessary to the orderly conduct
of business affairs, so the law provides tort protection against outsiders who improperly interfere
with other people’s contracts.
4. Any business is entitled to compete with other firms free from attacks on its reputation and
the products it sells. When derogatory statement harms the reputation of a businessperson or
firm, such as a corporation or a partnership, a suit can be brought for a tort of defamation.
Defamation of a business occurs when an unprivileged statement affects the credit rating of a
businessperson or firm or otherwise attacks the honesty or character of the business. For
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example, if a credit bureau, in response to a request from one of its members, sends a report
erroneously indicating that a company is in bankruptcy, this constitutes defamation.
5. A distinct tort which is related to defamation is disparagement*. Whereas defamation
damages a firm’s interest in its reputation, disparagement damages a business’s interest in the
economic value of its products and property. The tort of disparagement includes the torts of
slander of title* and slander of quality.
Slander of title involves publication of untrue matter which casts doubt upon, or denies, the
validity of another's title or interest in any kind of property and the publication causes financial
loss.
Slander of quality is publication of false matter which indicates that another’s property lacks
the characteristics its vendor claims for it or which indicates that the property is unfit for the
purposes for which it is being sold or leased. Thus the quality of the property will probably be
diminished.
6. Unfair trade practices encompass all interferences with the right of a business to enjoy its
goodwill and other trade advantages it possesses. Unfair trade practices take many forms.
Among them are fraudulent marketing and wrongfully imitating a company’s product design or
packaging. The term palming off * refers primarily to falsifying the source or maker of a product
or service. By misrepresenting the maker of a product, a business can “pass off” inferior goods to
a purchaser. Another method of “palming off” is for a competitor to imitate the name, physical
appearance, or packaging of a product. By imitating the form or style of another’s product or its
distinctive wrapping, a competitor may be able to pass off its goods to unsuspecting consumers.
To protect consumers and competitors from unfair trade practices competition laws have been
adopted which prohibit unfair and deceptive marketing, promotional and sales practices,
including false or deceptive advertising.
*competitive tort – деликт, основанный на недобросовестной конкуренции
*wrongful interference with business relations – противоправное вмешательство в
деловые отношения
*disparagement - умаление, недооценка конкурирующих товаров
*slander of title – заведомо необоснованное порочение правового титула
*to palm off – сбывать товар или вести дела, выдавая себя за другое лицо
Read the text again and choose the best answer to each question:
1. It is illegal when manufacturers and sellers compete with each other by
a) producing goods of better quality
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b) encouraging sale
c) to make the customer brand loyal
d) using fraudulent practices in marketing
2. Free and fair competition in the market economy is possible through
a) monopolizing production
b) setting up legitimate prices and product competition
c) establishing cartels
d) imposing trade conditions depending on society judgment
3. A businessperson is not liable for the losses he inflicts on a competitor unless he
a) enters a certain business for economic reasons
b) uses contracts to establish free competition
c) turns to dishonest or morally wrong business practices
d) engages in a new business
Speaking
Help to solve the problem:
Deborah, one of the guests visiting Mrs. Newman’s house, was injured when she slipped on
the ice on the steps leading from the front door. The hostess had warned Deborah about the
possibility of the steps being slippery, and Deborah admitted seeing the ice. Would Mrs.
Newman be liable in a legal action claiming negligence?
FOLLOW-UP EXERCISES
Review Questions
1. How are intentional torts classified? Characterize them.
2. What is the core element in an intentional tort?
3. What legal duty should the defendant perform?
4. What are the punitive damages designed for?
5. What is an injunction?
6. What is the basis of fraud?
7. What elements must be present for fraud to exist?
8. What is the legal duty of care?
9. What doctrines help to establish negligence?
10. When do the courts deny damages in actions for negligence?
11. What are three major areas of liability without fault? Explain the meaning of each one.
12. What activities give rise to strict liability?
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13. What is a competitive tort? When is a businessperson liable for economic harm to
competitors?
14. What are the main categories of competitive torts?
15. What is wrongful interference with business relations?
16. What is the basis of fraud?
17. What are the elements of fraud?
Writing
Write an essay stating the difference between the objectives of tort law and those of criminal
law.
Activity
Apply the law of torts to the following situations:
1. Cathleen was given a box of chocolates by one of her friends. When she was eating one
she was injured by a piece of glass inside the chocolate. Advise Cathleen what she should do in
such situation.
2. Daniel who was a passenger on a motor bike, suffered head injuries in an accident caused
by the negligence of the motor bike driver. When the accident happened Daniel was not wearing
a crash helmet. Advise Daniel what he should do in such situation.
JUST FOR FUN
Have you heard the story about an old lady and her cat?
An old lady gave her cat a bath and wanted to dry its fur faster so she put it in a microwave oven.
The cat of course died so the old lady sued the company that made the microwave oven because
the instructions never said anything about drying things in the oven.
Manufacturers of consumer products have to be liberal with the warning labels these days, lest
they get sued.
Product Warnings

"Do not use for drying pets." - In the manual for a microwave oven.
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
"Caution: The contents of this bottle should not be fed to fish." - On a bottle of
shampoo for dogs.

"Do not use while sleeping." - On a hair dryer.

Do not place this product into any electronic equipment." - On the case of a chocolate
CD in a gift basket.
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