Chapter 5 - Torts - Denver Bar Association

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CHAPTER 5
TORTS
by
Christopher K. Miller, Esq.
Todd A. Mahlik, Esq.
INTRODUCTION
There is no completely helpful definition of a "tort." In fact, tort law is constantly
changing by court decision and statute. However, recovery for torts is guaranteed by the
Colorado Constitution: "Courts of Justice shall be open to every person, property, or character..."
(Article II, Section 6).
Several of the main features and purposes of tort law are:
1. It is based on a contract.
2. It involves unreasonable conduct that harms another.
3. The primary purpose of tort law is to compensate injured victims (the plaintiffs) for the
harm caused by tortfeasors (the defendants).
4. The rationale for tort law is that society will be safer if people are careful because of
potential liability for unreasonable conduct.
Torts generally are organized by the nature of the defendant's conduct into three basic
categories:
1. intentional torts;
2. negligence, i.e., roughly speaking, unreasonable or careless conduct; and
3. strict liability--conduct which is neither intentional nor negligent but for which the
defendant is strictly liable because of the nature of his/her conduct, e.g., abnormally dangerous
activity or manufacture of defective products.
Torts can fit into more than one of the above categories. For instance, nuisance and sale
of a defective product can be founded in either intent, negligence, or strict liability.
The category of the tort is important because it helps determine the damages that can be
awarded against the defendant and the possible scope of liability, e.g., if the defendant's conduct
produces serious, far-reaching, unexpected consequences, will he/she be liable for them?
Similar to criminal law, there may be defenses (justifications) available to the defendant,
which excuse his/her conduct and defeat the plaintiff’s claim. If all of the basic requirements for
a tort have been satisfied, the plaintiff is said to have made a "prima facie" case. If a prima facie
case has been established and no defenses are applicable, the plaintiff is entitled to damages.
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INTENTIONAL TORTS
Intentional torts involve intent to harm or reckless disregard that the conduct will cause
injury. If the conduct caused harm, damages can be awarded. Further, if an intentional tort does
not result in harm, nominal damages (a token sum) still may be awarded.
Assault and Battery
An assault is intentionally causing another to fear immediate harmful or offensive bodily
contact. Battery is the act of actually intentionally touching another's body in a harmful or
offensive manner.
PROBLEM 1
a. Mary points an unloaded gun at John. John does not know that the gun is loaded.
What tort, if any, has occurred?
b. Bill shakes a clenched fist while talking to his best friend, Bob. Bill states, "If I
weren't such a good guy, I'd hit you." What tort, if any has occurred?
c. A burglar points a gun at Mary and Alice and says, “Your money or your life." He
hits Alice over the head with the butt of the gun and knocks her out. What tort, if any, has
occurred?
Conversion
Conversion occurs when a person physically interferes with the possession or ownership
of another's property. If the defendant initially had permission to have the property, there is no
conversion until the defendant refuses the owner's (plaintiff) demand to return the property.
PROBLEM 2
The plaintiff went to a car dealer to discuss the trade of his old car for a new one. During the
discussion and the inspection of new cars, the salesman took plaintiff's keys to his old car and
refused their return. Plaintiff had to call the police. What tort, if any, has occurred?
Defamation
Defamation can be spoken (slander) or written (libel). Defamation is a false statement
made to someone other than the plaintiff that tends to harm the plaintiff. Four types of statements
historically have been considered harmful enough to be defamatory without proof of injury. They
are:
1.
2.
3.
4.
Crime that is morally disapproved of;
Communicable disease;
Improper conduct related to a person's business; and
Accusations or insinuations about a woman's chastity.
Other false statements are defamation only if the plaintiff can prove that they caused
him/her injury.
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Defenses to a claim of defamation include:
1. Truth. The old saying is, "Truth is an absolute defense."
2. Consent. The party making the statement reasonably believes he/she has consent of the
plaintiff to make the statement.
3. Absolute Privilege. If an absolute privilege applies, the plaintiff cannot win even if
each element of defamation is proven. For example, legislators, judges, and top-ranking
government officials have absolute privilege for statements made in the course of their
duties. Similarly, a communication between a husband and wife about a third party is
privileged.
4. Qualified Privilege. If a qualified privilege applies, the plaintiff cannot win unless the
plaintiff proves the statement was they were made with "malice," i.e., with reckless
disregard for the truth or a malicious improper motive. Examples include "fair comment
and criticism" on a matter of public interest; report on public proceedings; statements
about "public figures" or "public officials"; and statements to people with a common
interest in the subject matter.
PROBLEM 3
a. John W. told his friends that the teacher of his children was insane. The teacher won
her claim of defamation, even though John introduced evidence that the teacher "severely
punished several of her students" and that she threatened him with an iron poker when he went
to school to protest. Has John slandered or libeled the teacher?
b. The newspaper published an article stating that Howard C. was sent back to the
asylum. Since a lunacy commission and an expert declared Howard insane, the article was not
libelous, despite the fact that a jury later judged Howard to be sane. Does Howard have a case
for slander or libel?
c. Florence was a "pure and virtuous girl . . .beloved and respected by all her friends and
acquaintances." She had been assaulted and her brother murdered by an assailant in North
Denver. However, the newspaper printed an article stating that Florence, "the girl who was
assaulted by an unknown man in North Denver last New Year's eve, became a mother
yesterday." There was no baby. Florence was entitled to recover damages. Why?
Trespass
Trespass to land occurs if a party, without the right to do so, enters or remains on the land
of another, or causes another person or object to enter or remain on the land of another. Trespass
to chattels (property) occurs when a party intentionally interferes with the personal property of
another. This interference may be removal or damage of property, but is a less severe
interference than occurs in conversion.
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PROBLEM 4
The defendants entered the plaintiff’s home about half a mile from the town of
Akron, Colorado, when the plaintiff was away and his wife and child were home. The
defendants took and destroyed eight barrels of beer and one barrel of whiskey, and frightened
and made the plaintiff’s wife ill.
a. What tort claims can be made by the plaintiff?
b. What tort claims can be made by the plaintiff’s wife and child?
Fraud (Intentional Misrepresentation)
To make a prima facie case for fraud, the plaintiff must establish five elements:
1. that the defendant made a statement or concealed a relevant fact;
2. that the defendant knew that the statement was false or concealed;
3. that the defendant intended that the plaintiff rely on the false statement or
concealment;
4. that the plaintiffs reliance was justified; and
5. that the plaintiff was damaged because of his/her reliance.
PROBLEM 5
a. Fraudulently, the used car dealer, turned back the odometer on a car from 70,000 to
20,000 miles, Cheerful, the purchaser, justifiably relied on the odometer reading. Is Cheerful
entitled to recover damages?
b. The owner of a kennel sold a beautiful, purebred dog to Mary, who stated before the
purchase that she intended to use the animal for breeding. Unknown to Mary, the owner had
knowledge that the dog was infertile. Is Mary entitled to recover damages?
False Imprisonment/False Arrest
False imprisonment is the intentional confinement of a person without the right to do so.
The confinement can be enforced physically or by threats of present harm to the plaintiff, his/her
property, or against third persons. False arrest occurs when the defendant causes the arrest of
plaintiff by legal authority without the right to do so.
PROBLEM 6
a. Grimes and Greenblatt, former partners in a junk business, had lingering bad feelings
toward one another. Grimes arranged to have Greenblatt arrested without a warrant for stealing
copper wire. No theft had occurred, and Greenblatt was falsely arrested and imprisoned in a
"bull pen, a foul and filthy cell in which were hobos and tramps." What tort, if any, has Grimes
committed?
b. When a store manager leaned over to check a cigarette machine, a customer
deliberately shoved two shopping carts into the back of his legs, injuring his ankles. The
customer then was verbally abusive, and hit an assistant on her way to confinement at the back
of the store to await police. What tort, if any, did the store personnel commit?
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Nuisance
Nuisance can be an intentional or negligent tort. The conduct must be dangerous to life or
property or out of place in the surroundings. Private nuisance is an interference with the
plaintiff’s interest in using or enjoying his/her property. Public nuisance is an act that interferes
with the public's use or enjoyment of common property. Generally, only the state can sue for
public nuisance unless a private person suffers a separate injury.
Under attractive nuisance, a landowner can be liable for injuries caused by a condition
that children are unable to recognize as dangerous (such as swimming pools). Generally, the
unsafe condition must be artificial, located where children are known or likely to trespass, and
involve an unreasonable risk of death or serious bodily harm to children. The plaintiff also must
prove that the risk to children is greater than the cost of eliminating the condition or the value of
the condition. There is a presumption in Colorado that the doctrine is limited to children under
14 years of age.
PROBLEM 7
a. Krebs moved to the suburbs and erected a kennel for up to ninety-three dogs, from
which arose "disagreeable odors" and all night barking and howling. This was a private
nuisance for his next-door neighbors. What tort, if any, has Krebs committed?
b. Siegle proposed a hog farm operation near a populated area, feeding the hogs
garbage, offal, and dead animals. What tort, if any, has Siegle committed?
c. Thirty-five to forty pounds of dynamite stored in a building close to a highway
exploded, killing three persons and injuring nine. What tort, if any, was committed?
d. A partially erected merry-go-round was left unguarded in a place where children
might be expected to and did play. What tort, if any, was committed?
Intentional Interference
In addition to the interference involved in nuisance law, there can be intentional
interference with family relationships, contract, and prospective advantage.
Most states have abolished interference with family relationships, which included
"alienation of affections" and "criminal conversation" for having sexual relations with a man's
wife. Only husbands were allowed to bring these claims, since wives were considered to be their
husband's "property" and had no similar right to sue. Colorado is one of the states that has
abolished these suits. C.R.S. § 13-20-202.
Interference with contract (present agreement) and prospective advantage (potential
economic advantage) both require:
1. an act which unfairly interferes with a legal contract or future business right;
2. the intent to interfere; and
3. damage from the interference.
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Interference with prospective advantage is a tort that is relatively newly recognized by
many states, including Colorado.
PROBLEM 8
Should the courts allow cases for interference with family relationships? Under what
circumstances?
NEGLIGENCE
Unlike the intentional tortfeasor, the negligent tortfeasor need not have intended to harm
another. The mental state of the negligent tortfeasor is irrelevant.
The components of negligence are as follows:
1.
2.
3.
4.
A legal "duty" to act by certain standards to avoid unreasonable risks to others.
The standard ordinarily is the duty to exercise reasonable care under the
circumstances (either a duty to do some act or refrain from doing some acts.
Failure to conform conduct to these standards.
The act caused injury to the plaintiff.
Actual damage must occur for recovery. (Nominal damages, allowed in
intentional torts, are not awarded in negligence.)
The courts have tried to establish what degree of risk becomes "unreasonable." The issue
normally is decided by a jury answering the following: "Would a reasonable person of ordinary
prudence, in the position of the defendant, have conducted himself as the defendant did?" Notice
the defendant is taken "as is." If the defendant is blind, physically disabled, deaf, etc., most
jurisdictions effectively alter the question to: "Would a reasonable person of ordinary prudence,
who suffers from this disability, in the position of the defendant, have conducted himself as the
defendant did?" This seems to apply primarily to physical disabilities, insanity, or imbecility to
the point the actor is prevented from understanding the danger. It does not apply to mental
attributes such as mere stupidity, hot-temperedness, or carelessness, nor does it apply to selfinduced disabilities caused by intoxication or drugs. The remaining exception to the "reasonable
person" standard is that children are held to conform to conduct of a "reasonable person of like
age, intelligence, and experience under the circumstances."
PROBLEM 9
a. Joe injured Beth when he violated the city ordinance against following too closely in
his automobile and caused a rear-end collision. What kind of negligence did Joe commit?
b. Doctor Smith successfully operated on Mary to remove her infected appendix, but
failed to remove all of the surgical sponges before suturing the incision. What kind of
negligence did Dr. Smith commit?
c. Store maintenance engineer Rick, while riding in the elevator, saw 6 year-old Nancy's
hand get caught in the door, but failed to stop the elevator immediately, thus aggravating her
injuries. What kind of negligence did Rick commit?
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Unless there is a special relationship between the parties, the law generally does not
require a person to help another. For instance, a person has no "duty" to save a drowning child,
even though one easily could do so. However, a babysitter would have a "duty" to save a child
they were babysitting because of the special relationship.
Formerly, if a plaintiff was found to have contributed, in any degree, to the plaintiffs own
injuries, the plaintiff was said to be "contributorily negligent" and, in many jurisdictions, could
recover nothing. Most jurisdictions now use a "comparative fault" standard, whereby a
percentage of the cause is attributed to each party, and the plaintiff loses the percentage of the
total damages attributed to the plaintiff. The plaintiff still recovers the percentage of damages
attributed to the defendant. For example, if a jury found the plaintiff 30 percent at fault and the
defendant 70 percent at fault for a car accident, the plaintiff could recover 70 percent of his/her
losses from the defendant. Colorado has a "modified comparative negligence" statute that
follows the above pattern if the defendant is more than 50 percent negligent; however, a plaintiff
who is 50 percent or more at fault recovers nothing. C.R.S. § 13-21-111.
A plaintiff’s comparative fault also is judged by the reasonable person standard. It can
include unreasonable conduct, unreasonable failure to act, or knowing "assumption" of the risk,
i.e., engaging in conduct knowing it involved unreasonable risk of injury.
PROBLEM 10
Pat suffers damages of $10,000. A jury finds Pat was 50 percent negligent and that
Joe, the defendant, was 50 percent negligent. What percentage may Pat recover in a
contributory negligence state? A pure comparative negligence state? A modified comparative
state?
Damages generally are characterized as compensatory and punitive. Compensatory
damages "compensate" the plaintiff for his/her actual losses. Compensatory damages include
both economic loss, i.e., out-of-pocket expenses for past and future lost income, medical bills,
etc., and non-economic loss, i.e., pain and suffering and emotional distress. As of 2004, Colorado
law limits non-economic damages to $366,250, except in cases when a Judge determines by clear
and convincing evidence that an award of up to twice that amount ($732,500) is justified. This
cap is adjusted periodically to reflect inflation. Generally, there is no "cap" on economic loss.
Punitive damages, on the other hand, are not linked to the severity of the plaintiff’s
losses. Punitive damages are used to punish the wrongdoer (defendant) and to make an example
so that others will not act in the same harmful way. Punitive damages are allowed only when the
defendant's conduct is outrageous, malicious, or willful or wanton (extreme) disregard for the
rights and safety of the plaintiff or society at large. Colorado limits punitive damages to a sum no
larger than compensatory damages, and prohibits considering the wealth of the defendant in
determining an amount.
PROBLEM 11
a. How does limiting punitive damages to an amount equal to compensatory damages
affect the fairness of punitive damages awarded against poor defendants and rich defendants?
b. Should the plaintiff’s wealth be considered in awarding damages? Why?
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PROBLEM 12
Jan, an avid tennis player, lost her leg in a car accident. What kinds of damages, and how
much, should Jan recover?
Prior to August 20, 1996, compensatory damages were not taxable, because they were
viewed as reimbursement. Now, amounts received as damages on account of personal physical
injuries are excludable from income. Damages for emotional distress that are due to a physical
injury are treated as damages received for the physical injury and are likewise excludable from
income. However, if the damages for emotional distress are not due to a physical injury or
sickness (for example, for cases such as employment discrimination or injury to reputation), the
award of damages for emotional distress must be included as income. Punitive damages are
always taxed because they are viewed as income not related directly to the injury.
AUTOMOBILE LIABILITY
Prior to July 1, 2003, Colorado operated under a “no-fault” automobile insurance scheme.
Under “no-fault,” your own insurance would pay your damages from an automobile accident,
regardless of who was at fault for the accident. According to the Colorado Department of
Insurance, “no-fault” insurance resulted in Coloradoans paying some of the highest automobile
insurance premiums in the country. Therefore, Colorado repealed the no-fault insurance laws
and reverted to a “tort” system for automobile insurance, like 37 other states. This means that if
you are involved in an automobile accident, you would file suit against the other driver under
normal “tort” theories, such as negligence. It is important to remember that Coloradoans must
still maintain automobile liability insurance.
PROBLEM 13
Should Colorado require all drivers to have insurance? What are the pros and cons of
this law?
Family Car Doctrine
The rationale for this doctrine is to place financial responsibility on the person most
likely to be able to pay damages. It is used to make an adult responsible when another member
of the family, frequently a minor, drives. For liability to fall on the “responsible adult”:
1. the adult must be head of the household;
2. the adult must have control over the use of the vehicle;
3. the adult must have given another family member his/her consent to the use of the
vehicle;
4. the other family member must have acted negligently; and
5. the negligence must caused damage
PROBLEM 14
Should parents be held responsible for their children’s motor vehicle accidents that
occur as a result of the child drinking and driving their parent’s car? Their own car, for
which parents have bought insurance? Why or why not?
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PREMISES LIABILITY
When a visitor enters upon the land of another, the duty of the “Possessor” of the land
(the person who owns, rents, or otherwise legally occupies the land) to that visitor depends on
the visitor’s “status” when he or she enters onto the Possessor’s land. That is, the status of the
visitor affects whether the Possessor can be held responsible for a particular injury to the visitor
while on the Possessor’s property. The table below shows what duty the Possessor has to each of
the three types of visitors (licensee, invitee, or a trespasser).
Definition of the Type of Visitor
Duty of Possessor to that Visitor
Invitee: a person who enters onto the
Possessor’s property, with the Possessor’s
permission, to transact business or in response
to the Possessor’s invitation. This generally
includes any person going into a store to shop.
This does not include social guests.
The Possessor must exercise reasonable care to
protect against dangers of which he or she
actually knew or should have known. This is
the highest form of duty a Possessor can owe
to a visitor
Licensee: a person who enters onto the
Possessor’s property, with the Possessor’s
permission, for the licensee's own convenience
or interests. This does include social guests.
The Possessor must exercise reasonable care
with respect to dangers created by the
landowner of which the landowner actually
knew.
Trespasser: a person who enters onto the The Possessor will only be liable for injuries to
Possessor’s property without the Possessor’s the trespasser that the Possessor willfully or
consent.
deliberately caused.
COLORADO CONSUMER PROTECTION ACT (the “CCPA”)
The CCPA, or C.R.S. 6-1-101 et seq., is a statute which is intended to deter and punish
various deceptive trade practices committed by businesses in dealing with the general public.
The CCPA addresses a wide-variety of deceptive business activities ranging from the sales of
goods, door-to-door and telephone solicitations, to timeshare sales, health club and dance studio
contracts.
In order to sue a company or business under the CCPA, the consumer must prove five
things:
(1)
(2)
(3)
the company engaged in a deceptive trade practice;
the deceptive trade practice occurred in the course of the company’s business,
vocation or occupation;
the challenged practice must significantly impact the public as actual or potential
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(4)
(5)
consumers of the company’s goods, services, or property;
the consumer suffered an injury to a legally protected interest; and
the consumer must show that the company’s actions in violation of the CCPA
caused consumer injury.
The Colorado Attorney General and the Colorado County District Attorneys are
concurrently responsible for the enforcement of the CCPA. The CCPA also provides a private
right of action, which means that persons can use the statute to sue companies that have engaged
in deceptive trade practices. In addition to civil fines against the business, consumers can obtain
injunctions to prevent future violations, as well as money damages. More significantly, in
certain circumstances, consumers can receive treble damages (three-times the damages the
consumer actually suffered) and attorneys’ fees—penalties that are otherwise unavailable in
ordinary fraud and tort cases.
PROFESSIONAL LIABILITY (MALPRACTICE)
Professional liability is a type of a negligence claim brought against a professional (such
as a physician, architect or accountant). In a professional liability case, the key is the “standard
of care.” Professionals are evaluated by comparing their actions against the “standard of care;”
that is, what a reasonably careful person in the same profession would, or would not have done,
under similar circumstances. In order to establish a prima facie case of professional liability, the
plaintiff must show that
1.
2.
3.
the professional’s conduct did not meet the standard of care;
the plaintiff suffered an injury; and
the professional’s deviation from the standard of care caused the plaintiff’s injury.
Generally, establishing what a professional should or should not have done is outside the
experience of an ordinary person. Therefore, the plaintiff must use expert opinion testimony to
establish the “standard of care” and to prove that the defendant in a case deviated from that
standard. An expert may be qualified to provide expert testimony through education, training, or
experience in the same profession as the defendant.
STRICT LIABILITY
Strict liability is sometimes called “liability without fault” or “absolute liability.” This
means that the plaintiff only needs to prove they were harmed by the defendant’s conduct; there
is not need to prove the conduct was unreasonable or done with intent to harm. It usually applies
in situations involving animals, abnormally dangerous activities, or product liability.
Under old English law and still in most eastern states, an owner is strictly liable for
property damage caused by trespass of their animals. In most western states whose economy
depends on raising livestock, an owner is not strictly liable if he/she has made reasonable efforts
to fence in the animal.
A person who keeps a non-domesticated or “wild” animal is strictly liable for all damage
56
caused by the animal, provided the damage results from the “dangerous nature” of the animal. A
domesticated species is one which “is by custom devoted to the service of mankind” in the
community in question.
The United States was slow to apply strict liability to abnormally dangerous activities.
Most often it is applied to conduct involving explosives, poisons, reservoir and dam construction.
Consideration must be given to the following elements in applying strict liability:
1. high degree of risk;
2. risk is of serious harm;
3. risk cannot be eliminated by exercise of reasonable care;
4. extent to which the activity is uncommon;
5. appropriateness of activity to location where carried on; and
6. utility of the activity to community balanced against its dangerous attributes.
Colorado has a variety of statutes affecting dangerous activity but generally has been moving
away from strict liability, particularly for reservoirs and dam liability.
PROBLEM 15
Should owners of pit bull dogs be held strictly liable for injuries? Why or why not?
PRODUCT LIABILITY
This area of law deals with a product that, because of a defect, causes injury. Liability
can be based on negligence, warranty, or strict liability. Product liability law has developed from
the concept of caveat emptor, i.e., "let the buyer beware" to a recognition that the buyer may not
always have the ability or obligation to protect him/herself. Defendants can include
manufacturers or persons down the chain of distribution, i.e., retailers, third persons with duty to
inspect, or other suppliers. A product can be deemed defective for purposes of strict liability for
faulty design, labeling, or manufacturing. A product also can be defective for failure to
adequately warn of the product's use and damages.
The theory of warranty may be express, i.e., seller expressly warrants that goods have
certain qualities, or implied, i.e., one can imply a certain quality because the seller has offered
the goods for sale. Product liability warranty law is a hybrid of tort and contract law. If a product
does not live up to an express warranty, the purchaser (or possibly others down the chain of use,
may sue for strict liability.
Warranties of merchantability, i.e., fit for the ordinary purposes for which such goods are
used, and of fitness, i.e., fit for the particular purpose for which seller knows purchaser wants to
use it, are common implied warranties.
Because of the complex nature of this area of law, most states, including Colorado have
enacted special legislation limiting types of defendants against whom strict liability claims may
be brought, and the application of comparative negligence doctrine, and creating a special statute
of limitations.
57
PROBLEM 16
a. Bill uses a lawnmower to cut his hedge. The mower falls, cutting Bill’s foot.
Should the manufacturer be held liable for failing to notify Bill about proper use of
the mower?
b. Crystal purchases a screwdriver. The handle falls off as she opens the package.
What warranty, if any, has been breached?
JUVENILE TORTS
In Colorado, a child under the age of seven generally is considered too young to have the
necessary understanding for negligence or assumption of the risk. See Benallo v. Bare, 427 P.2d
323, 162 Colo. 22 (1967); Bennett v. Gitzen, 484 P.2d 811, 29 Colo. App. 271 (1979). Under
conditions where older juveniles are licensed by the state to act as adults, i.e., motor vehicle
driver’s license, hunting license, juveniles are held to adult standards. In the majority of other
matters, the age, intelligence and experience of the juvenile will be taken into consideration.
Two areas of law have specific statutes involving juveniles and civil damages. One
statute provides that parents of a minor who maliciously or willfully causes destruction of
property or bodily injury shall be responsible for up to $3,500 of actual damages. C.R.S. § 1321-107. The other statue provides that parents of a minor who takes merchandise, without
paying, intends to convert merchandise to his/her own use, or alters the price tag shall be
responsible for all actual damages plus an extra penalty of at least $100 but no more than $250.
C.R.S. § 13-21-107.5.
PROBLEM 17
a. A single-parent mother purchases a gun for her teenage daughter, saying it's for her
daughter's protection while the mother is away at work at night. The daughter shows the gun
to her friends. It discharges, and one of the friends is injured by the gunshot. Even though it
was purely accidental, the parents of the injured victim sue. Who is responsible: the mother
who bought the gun or the daughter who was holding the gun when it discharged?
b. The daughter lets the friend take the gun (without bullets) to show other friends.
The gun is discovered in a school locker (not the daughter's). The daughter is called to the
principal's office, and then is suspended from school. Who is responsible?
SELF-DEFENSE
Throughout this chapter, references have been made to a variety of defenses. Perhaps the
most commonly known defense is that of self-defense. Tort law and criminal law both recognize
this privilege. Two issues determine the existence of the defense:
1. Was the defendant entitled to use some kind of force in defense of self?
and
2. If so, what degree of force was the defendant entitled to use?
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A person may use reasonable force to prevent a present threatened harmful or offensive
bodily contact, confinement, or imprisonment. A threat does not need to be real as long as the
defendant reasonably believes there is one. Since the threat must be "present," the use of force
cannot be retaliatory and must stop as soon as the threat is gone. Words alone are almost never a
sufficient threat. Reasonable force also may be used to defend other persons. Deadly force may
not be used unless there is danger of death or serious bodily harm, and then only if a lesser
degree of force will not dispel the danger. The general rule has been that defense of property is
allowed on the same basis as the right to defend oneself, except that deadly force cannot be used
to protect property.
Recently, increased concerns about crime have led to new laws relating to self-defense,
particularly near one's home. While these laws primarily were intended to provide a criminal
defense, they have an additional effect on tort law. Colorado's enactment provides that “any
occupant of a dwelling is justified in using any degree of physical force, including deadly force,
against another person when the other person has made an unlawful entry..." and the occupant
“has a reasonable belief” that such other person has committed a crime or intends to commit a
crime other than the entry, and when the occupant reasonably believes the "other person might
use any physical force, no matter how slight, against the occupant." This is the Colorado "Make
My Day" law. Clearly, the general standards are changed for residences by this statute.
PROBLEM 18
Do you agree with the "Make My Day" law? What are the pros and cons of having
such a law?
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