Pokhara University
Nepal Engineering College
Centre for the Post Graduate Studies
ECM 521 :
Professional Ethics and Liability in Construction
5. Tort and Crime
Introduction to Criminal Law and Tort Low
Type of Tort and Professional Negligence
Tort and Third Party Liability
Tort and the Project Manager
Crime
• A crime is a wrongdoing classified by the state
or Congress as a felony or misdemeanor.
• A crime is an offence against a public law. This
word, in its most general sense, includes all
offences, but in its more limited sense is
confined to felony.
• The term offence may be considered as having
the same meaning, but is usually understood
to be a crime not indictable but punishable,
summarily or by the forfeiture of a penalty.
2
Criminal law
• Criminal law, also known as penal law, pertains to
crimes and punishment. It thus regulates the
definition of and penalties for offences found to
have a sufficiently deleterious social impact but,
in itself, makes no moral judgment on an offender
nor imposes restrictions on society that physically
prevents people from committing a crime in the
first place.
• Investigating, apprehending, charging, and trying
suspected offenders are regulated by the law of
criminal procedure
3
Criminal law
• The paradigm case of a crime lies in the proof, beyond
reasonable doubt, that a person is guilty of two things.
– First, the accused must commit an act which is
deemed by society to be criminal, or actus reus (guilty
act).
– Second, the accused must have the requisite malicious
intent to do a criminal act, or mens rea (guilty mind).
• Modern criminal law has been affected considerably by the social
sciences, especially with respect to sentencing, legal research,
legislation, and rehabilitation.
• On the international field, 111 countries are members of the
International Criminal Court, which was established to try people
for crimes against humanity
4
Tort
• From French for "wrong,"
• A civil wrong or wrongful act, whether intentional or
accidental, from which injury occurs to another. Torts
include all negligence cases as well as intentional
wrongs which result in harm.
• Torts, are civil wrongs. To have acted tortiously, one
must have breached a duty to another person, or
infringed some pre-existing legal right.
5
Tort law
• In tort law, injury is defined broadly. Injury does
not just mean a physical injury
• Injuries in tort law reflect any invasion of any
number of individual interests. This includesinterests recognized in other areas of law, such as
property rights, actions for nuisance (annoying or
hurting) and trespass (unlawful entering) of land
can arise from interfering with rights in real
property
6
Tort Law
• The injured party sues the defendant or tort
feasor.
– 1. Brought in civil court
– 2. Seek damages
– 3. Not necessarily a crime
– 4. Standard – preponderance of the evidence
(i.e. more likely than not)
7
Tort Law
Individual’s rights (in General)
1.
2.
3.
4.
right to be free from bodily harm
right to enjoy a good reputation
right to conduct business with out wrongful interference
right to have property free from interference
• Civil tort law is that branch of law that deals with breaches of civil
duties, rather than a contractual duty or a general societal duty.
• Although many violations may be classified as either a tort or a
crime, there are some major differences between a tort and crime.
• Crimes are typically prosecuted by the state, whereas any citizen
who has been injured can file a lawsuit for tort.
8
Tort Law
• In a tort cause of action, the person who violates tort laws is called
a “tortfeasor.”
• The party that has suffered the tortious injury may then be entitled
to receive damages if they succeed in court.
• Damages usually take the form of monetary compensation for the
injuries that the victim has received.
• Tort laws define what types of legal injuries may be claimed in a
civil court.
• Tort injuries are not limited to physical harm- they may also
include economic, emotional, or even injuries to one’s reputation.
• A person may also recover damages for violations of rights, such
as property, privacy, or constitutional rights.
• Thus, civil tort claims can form the basis for a very wide variety of
legal claims.
9
Types of Tort
• Civil tort claims may be classified into three basic
categories: Intentional torts, negligence, and strict liability
torts.
• Each of these is associated with different standards of proof,
remedies, and defenses. The vast majority of tort claims are
based on negligence.
1. Intentional torts
•
•
•
An intentional tort occurs where the tortfeasor acts
knowingly and wilfully to injure the victim.
Intentional tort is a civil wrong that occurs when the
wrongdoer engages in intentional conduct that results in
damages to another.
Striking another person in a fight is an intentional act that
would be the tort of battery.
10
Types of Tort
2. Negligence
 Negligence is a type of tort wherein the tortfeasor breaches a care of
duty, resulting in harm or injury to the plaintiff.
 Careless conduct that results in damage to another is negligence.
Striking a person accidentally would not be an intentional tort since
there was not intent to strike the person. This may, however, be a
negligent act.
3. Strict liability
 Generally, liability because of a tort only arises where the defendant
either intended to cause harm to the plaintiff or in situations where
the defendant is negligent. However, in some areas, liability can arise
even when there is no intention to cause harm or negligence.
 For example, in most states, when a contractor uses dynamite which
causes debris to be thrown onto the land of another and damages the
landowner’s house, the landowner may recover damages from the
contractor even if the contractor was not negligent and did not intend
to cause any harm. This is called strict liability or absolute liability.
 Strict Liability occurs where the tortfeasor becomes liable even if they
did not act intentionally or breach a duty of care
11
Types of Tort
The Intentional Torts ( any intentional acts that are reasonably
:
foreseeable to cause harm to an individual, and that do so )
• Assault: Threatening to strike or harm with a weapon or
physical movement, resulting in fear.
• Battery: Unlawful, unprivileged touching of another person.
• Trespass: Wrongful injury or interference with the property of
another.
• Nuisance: Anything that interferes with the enjoyment of life
or property.
• Interference with contractual relations: Intentionally causing
one person not to enter or to break a contract with another.
• Deceit: False statement or deceptive practice done with
intent to injure another.
12
Types of Tort
The Intentional Torts…..
• Conversion: Unauthorized taking or borrowing of personal
property of another for the use of the taker.
• False imprisonment: Unlawful restraint of a person, whether
in prison or otherwise.
• Defamation: Wrongful act of injuring another’s reputation by
making false statements.
• Invasion of privacy: Interference with person’s right to be left
alone.
• Misuse of legal procedure: Bringing of legal action with
malice and without probable cause.
• Infliction of emotional distress: Intentionally or recklessly
causing emotional or mental suffering to others.
13
Types of Tort
Tort and Negligence
• A tort is a wrongful act or omission, constituting negligence, that
results in identifiable harm to a person and for which relief,
typically in the form of monetary damages, may be obtained by
bringing a civil action in a court of law.
• Negligence may be the failure to do what a reasonably prudent
person would ordinarily have done to prevent foreseeable harm
to another under the circumstances, i.e.– doing of a careless, reckless, or intentionally malicious act
that a prudent and reasonable person would not have done.
• Negligence standard seeks to punish and discourage abnormal or
inappropriate action that harms others.
14
Types of Tort
Negligence
• Negligence is a tort which depends on the
existence of a breaking of the duty of care owed
by one person to another
• Negligent behavior towards others gives them
rights to be compensated for the harm to their
body, property, mental well-being, financial
status or relationship
• Negligence is used in comparison to acts or
omissions which are intentional or willful
15
Principles of Negligence
Donoghue v Stevenson (Case)
• A friend of Mrs Donoghue ordered an opaque bottle of ginger beer
(intended for the consumption of Mrs Donoghue) in a café in
Paisley. Having consumed half of it, Mrs Donoghue poured the
remainder into a tumbler. The decomposing remains of a snail
floated out. She claimed to have suffered from shock, fell ill with
gastroenteritis and sued the manufacturer for carelessly allowing
the drink to be contaminated. The House of Lords decided that the
manufacturer was liable for Mrs Donoghue's illness. Lord Atkin took
a distinctly moral approach, and said,
• The liability for negligence ... is no doubt based upon a general
public sentiment of moral wrongdoing for which the offender must
pay ... The rule that you are to love your neighbour becomes in law,
you must not injure your neighbour; and the lawyer's question,
Who is my neighbour? receives a restricted reply. You must take
reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.
16
Principles of Negligence
• Duty of Care – a reasonable responsibility to act
or not to act
• Breach of Duty – the reasonable person test.
(not equal to logical, normal or average)
• Proximate Cause – without breach the result
would not have occurred. (not equal to actual
cause)
• Actual harm – (i.e. physical injury, property
damage)
• Measurable Damages- a financial loss ( may
include pain and suffering)
17
Types of Tort
Strict Liability
• In law, strict liability is a standard for liability which may exist in
either a criminal or civil context.
– A rule specifying strict liability makes a person legally responsible for the
damage and loss caused by his or her acts and omissions regardless of
culpability
• Strict liability is prominent in tort law (especially product liability),
corporations law, and criminal law. For analysis of the pros and
cons of strict liability as applied to product liability, the most
important strict liability regime, see product liability.
• Strict liability in tort is the concept that in certain situations a
defendant is liable for plaintiff's damages without any
requirement that the plaintiff prove that the defendant was
negligent
18
Strict Liability
The doctrine of strict liability-Applies
to ultra-hazardous activities that involve a great risk to people and
property.
-If the subcontractor makes a mistake, the contractor is strictly liable for
any damage that occurs.
Also, applies to product liability –
cases in which people are injured from defects in products.
– The firm that manufactures a product is liable.
– regardless of the fault for injuries to users of the product if a defect in
one of those machines.
–
• Does not apply if company does not actively engage in the sale of that
good.
• Wrongful death statutes – preserve the rights of third parties affected by
the death of a person to bring a lawsuit.
• Punitive damages relate to gross negligence and reckless disregard goes
beyond compensation and allows the plaintiff to attack company profits.
19
Other Torts: Trespass
• an unlawful act causing injury to the person,
property, or rights of another, committed with
force or violence, actual or implied,
• especially, a wrongful entry upon the lands of
another.
• Trespass is an area of tort law broadly divided
into three groups: trespass to the person,
trespass to chattels and trespass to land.
20
Other Torts: Trespass
• Trespass to the person involved six separate trespasses:
threats (intimidation), assault (injury), Battery
(unpermitted contact ), wounding, mayhem(disorder),
and marring (injury or damage)
• Trespass to chattels, also known as trespass to goods or
trespass to personal property, is defined as "an
intentional interference with the possession of
personal property...proximately caus[ing] injury
• Trespass to land, the form of trespass most associated
with the term trespass, refers to the "wrongful
interference with one's possessory rights in [real]
property
21
Third party Liability: Vicarious Liability
• Vicarious liability sometimes called "imputed liability,"
attachment of responsibility to a person for harm or damages
caused by another person in either a negligence lawsuit or
criminal prosecution.
• Vicarious liability is a form of strict, secondary liability that
arises under the common law doctrine of agency – respondeat
superior – the responsibility of the superior for the acts of their
subordinate, or, in a broader sense, the responsibility of any third
party that had the "right, ability or duty to control" the activities
of a violator.
-Parent and child,
-Owner of a vehicle and driver, and
-Employer and employee.
• Ordinarily the independent negligence of one person is not
imputable to another person
22
Vicarious Liability: Employers' liability
• Employers are vicariously liable, under the respondent
superior doctrine, for negligent acts or omissions by their
employees in the course of employment
• However, the employer of an independent contractor is not
held vicariously liable for the tortious acts of the
contractor, except where the contractor injures someone to
whom the employer owes a non-delegable duty of care,
such as where the employer is a school authority and the
injured party a pupil.
• Employers are also liable under the common law principle
represented in the Latin phrase, "qui facit per alium facit
per se", i.e. the one who acts through another, acts in his or
her own interests.
23
Vicarious Liability: Principals' liability
• The owner of an automobile can be held vicariously liable
for negligence committed by a person to whom the car has
been loaned, as if the owner was a principal and the driver
his or her agent, if the driver is using the car primarily for
the purpose of performing a task for the owner.
• Courts have been reluctant to extend this liability to the owners of other
kinds of chattel. For example, the owner of a plane will not be vicariously
liable for the actions of a pilot to whom he or she has lent it to perform the
owner's purpose.
24
Vicarious Liability: Parental liability
• In the United States, the question of parental
responsibility generally and the issue of parental
vicarious liability for the torts of their children is
evolving.
• What is clear is that parents can be held liable for
their own negligent acts, such as failure to supervise
a child, or failure to keep a dangerous instrument
such as a handgun outside the reach of their children
25
The liability of corporations in tort
• In English law, a corporation can only act through its employees
and agents so it is necessary to decide in which circumstances
the law of agency or vicarious liability will apply to hold the
corporation liable in tort for the frauds of its directors or senior
officers.
• If liability for the particular tort requires a state of mind, then to
be liable, the director or senior officer must have that state of
mind and it must be attributed to the company
• If a director or officer is expressly authorised to make
representations of a particular class on behalf of the company,
and fraudulently makes a representation of that class to a Third
Party causing loss, the company will be liable even though the
particular representation was an improper way of doing what he
was authorised to do
26
Vicarious Liability:
Employers' indemnity
• The principle of vicarious liability can also be
bypassed with a legal instrument known as
Employers' indemnity. When an employer is
successfully sued, they have the option of suing the
tortfeasor for an indemnity to recover the damages
back
27
Tort actions
• Torts can take the form of causing– actual physical or psychological injuries;
– violating a business relationship by fraud, libel, or slander;
– or any other negligent act or omission that causes economic losses to
another.
• A tort claim is a civil action between private parties in
contrast to a criminal action brought by the government for
which the penalty can include imprisonment.
• The basic principle of the tort system is that whoever is at
fault for causing an injury must pay the costs for negligent or
irresponsible behavior.
• Generally, compensation is based on the portion of blame
assigned to each individual involved and can involve
monetary payments for economic, noneconomic, and punitive
damages
28
Tort actions
• In general, a tort claim seeks redress by relying on the civil justice
system to assign fault and, as much as practicable, to make an
injured or wronged person “whole” again by forcing the guilty
party (tort-feasor) to pay for the harmed person’s present and
future medical expenses, income reduction, or other tangible or
intangible losses.
• While money alone is often inadequate to compensate a person for
the severe pain and suffering resulting from physical or mental
injuries or loss of reputation, it is the chief remedy available to the
civil court.
• Other remedies include– Injunctions (court orders to make someone do something or to prohibit an
action),
– Evictions, garnishment, and attachment (repossession of property
pursuant to an unpaid debt).
• Awarding of money is also designed to punish wrongdoing and
provide warnings in hopes of preventing similar behavior in the
future.
29
Defenses to Negligence
• Contributory Negligence
– If only one party is responsible for the whole incident, then he or
she pays all of the costs. Multiple tort-feasors can be required to
share the costs, based on their portion of the fault, as determined by
the judge or jury.
• Comparative Negligence
– If the plaintiff's responsibility is shared with others, his or her
liability is compared to each of the defendant's and damage awards
may be reduced proportionately.
• Joint and several liability
– if multiple persons are found to be at fault, and one or more of them,
is unable to pay the monetary damages assessed, the remaining
dependents may be required to assume responsibility for the
remainder (so called "deep pockets“)
30
Damages in Negligence
• Economic damage
– compensation for the actual and estimated costs of present and future
medical care, loss of income or earning capacity, harm to reputation, and
damage or loss of property.
• Noneconomic damages
– can include awards for pain and suffering- mental distress, worry or
emotional anguish of the injured individual embarrassment or humiliation,
loss of enjoyment of the normal activities benefits and pleasures of life,
loss of well being or bodily function, and the loss of society consortium
companionship and affection suffered by the family of a person who is
severely injured or dies as a result of a tortuous act.
• Punitive damages
– may be awarded to the victim but are intended to serve as punishment to
the party at fault and to deter similar future wrongdoing by the guilty party
and others in similar situations.
31
Tort Law Overlap with Criminal Law
• Tort law is one of the major areas of law (along with contract,
real property and criminal law) and results in more civil litigation
than any other category.
• There is some overlap between criminal law and tort, since tort,
a private action, used to be used more than criminal laws in the
past. For example,
– in English law an assault is both a crime and a tort (a form of trespass to
the person).
– Many jurisdictions, especially the US, retain punitive elements in tort
damages, for example in anti-trust and consumer-related torts
• Some intentional torts may also be crimes, such as assault,
battery, wrongful death, fraud, conversion (a euphemism for
theft) and trespass on property and form the basis for a lawsuit
for damages by the injured party.
• Defamation, including intentionally telling harmful untruths
about another-either by print or broadcast (libel) or orally
(slander)-is a tort and used to be a crime as well.
32
Tort Law Overlap with Criminal Law
• in English law an assault is both a crime and a tort (a form
of trespass to the person).
• A tort allows a person, usually the victim, to obtain a
remedy that serves their own purposes (the payment
of damages to a person injured in a car accident, or the
obtaining of injunctive relief to stop a person interfering
with their business).
• Criminal actions on the other hand are pursued not to
obtain remedies to assist a person – although often
criminal courts do have power to grant such remedies –
but to remove their liberty on the state's behalf.
• That explains why incarceration is usually available as a
penalty for serious crimes, but not usually for torts.
Overlap in Criminal Law and Tort Law
• The more severe penalties available in criminal law also
means that it requires a higher burden of proof to be
discharged than the related tort.
• Many
jurisdictions,
especially
the
US,
retain punitive elements in tort damages, for example in
anti-trust and consumer-related torts, making tort blur the
line with criminal acts.
• Also there are situations where, particularly if the defendant
ignores the orders of the court, a plaintiff can obtain a punitive
remedy against the defendant, including imprisonment.
• Some torts may have a public element – for
example, public nuisance – and sometimes actions in tort
will be brought by a public body.
• Also, while criminal law is primarily punitive, many
jurisdictions have developed forms of monetary compensation
or restitution which criminal courts can directly order the
defendant to pay to the victim.
Difference Between Criminal Law and Tort Law
• The main difference between a criminal law and civil
law has to do with the type of punishment involved.
– Criminal offenses may lead to incarceration in a jail or prison
facility.
– However, for civil violations such as torts, the person may not
be incarcerated. The punishment will have to take the form of
monetary damages, or an injunction (a court order requiring
the person to cease their violations).
– Also, criminal offenses are handled by prosecutors who are
employed by the state.
• This means that criminal offenses are often associated
with a variety of protections for the defendant to prevent
abuses by the state.
– Some examples of these protections are search and seizure
provisions and issues with evidence.
Many of these
protections are not available in a civil claim.
Tort and Contract
• There are some legal actions that mix elements of contracts
and torts so thoroughly that we can't separate them.
• Torts are related in many ways to contracts.
• With contracts, a duty spelled out in an agreement may be
violated, which results in injury.
• In the case of torts, the duty comes from general laws or
customs.
• Cases involving a combination of contract and tort are
different from pure torts only in the origin of the duty
involved
• “The Case of the Provable Feast”
36
Tort and Contract
Conversion from Contract to Tort
• Small claims tort cases often begin with contracts
• The rule is, if you lend someone your property, and they use it in a way
you did not foresee or give permission for, you may recover for this tort of
conversion
• Conversion can be committed either intentionally or negligently
Fraud and Deceit
• Cases of fraud and deceit most often begin with a contract
• A claim of fraud cannot be based on statements about the future, because
no one can see that far.
• And you cannot be deceived when you know that the representation made
to you is false, or that it is too outrageous to be believed
• Again, the court will not be put in the position of protecting people from
themselves.
37
Tort and Contract
1.
2.
3.
4.
5.
6.
Combinations of tort and contract cases situations where the duties in a
contract are not done, or are done improperly, and damage results:
A landlord has a general duty to keep the rented premises safe from
known dangers. It's the same for shippers and truckers and their cargo.
Bus and cab drivers have a duty to transport their passengers safely and
within the law.
Beverage bottlers and food packagers have a duty to keep foreign
substances out of their products.
All people who supply services have a duty to perform them in such a
way that other people and their property are not damaged.
Manufacturers of all kinds, from the crafter at the weekend show to the
multi-national conglomerate, have a duty to make their products safe to
the consumer.
Businesses have a duty to their customers to keep their premises safe
from known dangers.
38
Difference between Tort and Contract
• Assignment
– you can assign a debt but you cannot assign a right of action in tort
• Capacity of the parties
– a minor is liable for their torts but is limited in liability in relation to
contract
• Conflict of laws
– the conflict of laws rules are different for contract and tort
• Damages
– there are significant differences between the measures of damages
recoverable in contract and tort
• Limitation of actions
– although both contract and tort claims basically have the same
limitation period, there are important differences regarding the time
from which the cause of action accrues
39
Difference between Tort and Contract
The main differences between contract and tort are:
• Duties in tort are determined by the law - duties in contract
are chiefly determined by the parties.
– i.e. you choose to be bound under a contract but you cannot choose
whether or not to be bound under the law.
• Duties in tort are commonly owed to persons generally
whereas those in contract are towards a specific person or
persons.
• Contract law is based on an enforceable agreement. Breaches
of the agreement cause the damage, e.g. selling a faulty car
while saying it was like new in the agreement.
• Tort law is usually focused on foreseeable negligence causing
damages, e.g. Driving while drunk and hitting someone.
40
Difference between Tort and Contract
• What are the similarities of law of tort and contract ?
• Civil Proceedings in both.
• What is the difference between a tort and contract?
• A contract is written agreement between two or
more parties. It defines how the parties will act.
• A tort is an injury done to a person or their
property.
41
THANK YOU
42