Saturday, November 16, 2019
Intentional Torts, Negligence, Nuisance Essay Example for Free
Intentional Torts, Negligence, Nuisance Essay A tort is a legal injury resulting from a violation of a legal right which arises independent of contract and for which restitution may be had in a civil action for damages. Generally, there are three kinds of torts. They are: first, those which are based on fault or negligence; second, intentional torts; and third, those where the element of negligence or intent does not enter as an essential element.            The first kind refers to the fault or negligence of a person who, by his act or omission, causes damage to another, to whom he is not bound by any contractual relation. In some civil law jurisdictions, this tort is popularly known as quasi-delict which is of French origin comprehending a common law concept of negligence. In actions based on quasi-delicts, to recover damages, an injured party must prove the fault or negligence of the defendant, the damage suffered and the relation of cause and effect between the defendant’s negligence and the damage or injury he has suffered. The immediate cause which produces the injury must not be intermitted by any intervening cause. In cases where both parties are negligent and proximate cause cannot be directly attributed to either party, the humanitarian doctrine provides that the party who had the last chance to avoid the accident but did not do so, shall be held accountable for the consequences of the act. Intentional torts are acts causing injury to persons or property committed with intent to cause damage to another.  This is covered under provisions on human relations. An example of this type is trespass to land, whether such violation of property right causes improvement or damage to the land. This is an actual invasion to other person’s possession without consent. A good example of the third kind is nuisance. This is sometimes classified as intentional tort. Nuisance is any act, omission, establishment, business, condition of property or anything else which injures or endangers the health or safety of others or annoys or offends the senses or shocks, defies or disregards decency or morality or obstructs or interferes with the free passage of any public highway or street, or any body of water or hinders or impairs the use of property. As to injurious effects, nuisance may be classified as public nuisance or private nuisance. A public nuisance affects a community or neighborhood or any considerable number of persons, while a private nuisance affects only a person or small number of persons. The remedies against nuisance are abatement brought by an agency of the government and damage suit or relief by injunction by private individuals whose enjoyment of a right has been impaired. In tort cases, the doctrine of res ipsa loquitor is applied. The doctrine requires that the accident must be of a kind that does not ordinarily happen without defendant’s negligence. It affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from want of care. The accident must have been caused by an agency or instrumentality within the exclusive control of the defendant and not due to any voluntary action or contribution on the part of the plaintiff. Strict Liability and Product Liability             Strict liability in tort is a concept where the plaintiff need not prove the negligence of the defendant in order to recover damages caused by defective products. . Consensual contract is not necessary to prove liability of the defendant. Strict liability is enforced against the manufacturers who are responsible for committing the products in the market. Liability rests on the protection of the consumers with the aim of securing that the costs of harms brought about by defective products are donned by the manufacturers. In product liability case, the burden of proof is shifted from the plaintiff to the defendant.  The plaintiff must only prove that he suffered injuries by the defective product and that said defect already exists at the time the goods departed from the manufacturer or retailer as distinguished from recovery due to negligence, where the plaintiff has yet to prove that the defect was caused by defendant’s failure to act with prudence. Strict liability applies only where there is physical harm or damage to other property. Economic loss such as consequential loss of income or cost of repair/replacement brought by defective product is recoverable under the Uniform Commercial Code. If a product exists different from what is intended by the manufacturer or differs from the same manufacturer’s product, it is said to be defective. However, the manufacturer is not liable if the injury is caused by unanticipated use or misuse of the product. Wrongful Death and Survival Tort Action            When through negligence a person is  killed, wrongful death happens. Damages may be recovered by the decedent’s survivors or beneficiaries. Survivors need not prove the exact amount of damages which fall under two classes: economic damages and noneconomic damages. Economic damages include funeral and burial expenses. If the survivors are receiving financial support, it has to be included, computed based on the life expectancy of the decedent. The value of household services that could have been provided by the decedent to his beneficiaries had he survived shall also form part of the economic damages. In addition, gifts and other benefits the decedent could have contributed to the survivors shall also be included. Economic benefits shall be reduced to current value. In deciding for the noneconomic benefits which includes loss and sufferings, no fixed standard exists.            In survival action for tort, it is the estate of the decedent that can claim for lost earnings, punitive damages and medical expenses incurred by the deceased before to his death. It means that, it is the successor-in-interest that has the right to file such claim, subject to testate or intestate proceedings under a probate court. Both wrongful death and survival tort action are subject to prescriptive periods under the Statute of Limitations. Wrongful death has to be claimed within two years from the death of the decedent.  In survival action, the time limit for the action commences from the date the claim actually passed to the deceased. In deciding these cases, the scale of justice is slightly tilted in favor of the plaintiff where only clear and convincing evidence is required. Immunity, Release and Contribution, Indemnity            State political subdivisions such as hospitals enjoy immunity from suits for negligence or intentional torts under state law. However, under federal preemption law, they may be sued under the EMTALA or Emergency Medical Treatment and Active Labor Act. Regarding state immunity statute, where a conflict arises between state law and federal law, state law must yield under the supremacy clause of the U.S. Constitution. Under the Communications Decency Act of l996, providers or users of interactive computer service are entitled to immunity. Legislators also enjoy immunity from suit while in Congress in the exercise of their legislative functions. In personal injury suits, there are cases where there are two or more tort-feasors who are jointly and severally liable for the injury caused to the plaintiff. Joint tort-feasors are entitled to right of contribution and pro-rata share of the money judgment provided the common liability for damages has been satisfied in full. The right to contribution is granted only to a tort-feasor who has not willfully caused the injury. Payment by one of the whole liability extinguishes the others and entitles one to recover contributions from the other tort-feasors. However release of one by the injured party does not necessarily release the other tort-feasors unless provided for in the release, but the claim shall be reduced proportionate to the amount in the release. The party to whom release is granted is exculpated from all liability for contribution to the other co defendants. The proportional degree of fault or negligence of the tort-feasors shall determine their pro-rata share in the liability. However, this issue of proportionate fault should have been litigated and decided in the same action for damages by way of cross-complaint.  In case a defendant has paid the whole obligation or more than his share in the claim; he is entitled to indemnity by filing a cross-claim against a co party. Where a tort-feasor is entitled to indemnity, the right is for indemnity and not for contribution. Workers’ Compensation, No-Fault Auto Insurance            Workers’ compensation is an option to the tort system. Firms self-insure or purchase workers’ compensation insurance as mandated by the state law for the benefit of the workers who sometimes are injured in the performance of their duties. The insurer pays the worker medical expenses and average wage while under recovery. The only requirement to avail of this benefit is that the injury must be work-related. It does not matter whether there is negligence on the part of the employee or employer. Under this alternative, there is guaranteed income, and because of this, the employee waives his right to sue his employer for work-related injuries sustained.            The problems of long and costly court cases to determine who is at fault led to the enactment of the no-fault auto insurance laws that provide for the payment of policy holders irrespective of fault and also limits the right to sue. This is known as personal injury protection or PIP first party coverage. This is also an alternative to the tort system.  Motorists are allowed to sue only under certain thresholds involving grimness of injury. The law intends to reduce vehicular accidents cases clogging the courts, limiting payment for losses and restricting recovery for non-economic damages thus, reducing premiums on auto insurance. Defamation, Injurious Falsehood, Invasion of Privacy Defamation is one of the dignitary torts which refers to the issuing or publishing of a false statement to a third party about another person, resulting to another person’s injured reputation which entitles him to damages. Defamation in print is called libel. Oral or spoken defamation is slander. To have one’s reputation remain untarnished is one of the rights of a person under the civil law system. The burden of proof lies with the defendant to prove his innocence. The plaintiff does not need to prove intent to besmirch his reputation and the actual damage suffered. However, the requirement to prove damage is not totally abstracted in all slander cases. The Ontario Libel and Slander Act of Canada still requires proof of damage in cases where the damaged reputation of the plaintiff resulted to loss of business contract.            The tort of injurious falsehood or slander of goods applies where a person’s goods are discredited resulting to economic loss, usually made by dissatisfied customers or dismissed employees. Monetary loss must to be proved to obtain recovery for damages. The elements for this tort are: a statement about the goods; that there is falsity in the statement which was published maliciously and that the plaintiff suffered damages. To establish slander of goods, the statement must cause a reasonable person to believe that the statement is true. The defendant need not mention the product or name of the plaintiff to be liable. It is enough that an implication be drawn by the public that the defendant’s derogatory statement refers to the goods in issue where for example there is only but two products of same sort in the industry.            Invasion of privacy is another form of dignitary tort. This is a right also protected by the Constitution under the Fourth Amendment, for a person to be left alone by himself free from interference or abuses of the government. This includes the right to property against unreasonable search and seizure. Invasion of property by private individuals is dealt with under private tort law. Four categories are set forth under this tort. One is intrusion of solitude which arises when a person presents or displays another to unjustifiable promotional material or publicity. Another category is public disclosure which is revealing of private information though conforming to truth is appalling to a sensible person. The third category is false light which places another person before the public in a false light through misrepresentation of a person’s character, beliefs and activities and the last of the categories is appropriation which involves using the person’s identity or visual representation without his consent for the benefit of another person. Invasion of privacy entitles an injured person to compensatory damages and punitive justice. Misrepresentation            Any averment or expression conducted in any manner that is not in accord with facts is misrepresentation. It is a civil wrong and creates civil liability if monetary loss ensues. A person making misrepresentation to be held liable, the misrepresentation must be relied upon by the recipient or taker of the falsified statement and the maker knew of such fact. Misrepresentation creates liability whether committed intentionally or unintentionally. In a contract, misrepresentation bestows a person a valid ground for the rescission of contract. An insurance policy contract may be cancelled due to material misrepresentation made by the insured or the insurer may refuse a claim. An opinion that is not a true statement is not a misrepresentation of fact. However a promise which the maker has no intention of carrying out that induces another person to enter into an agreement is an actionable tort. Interference with Economic Relations            Interference with economic relations is an economic tort the purpose of which is to protect people from intervention with their commercial or business relations thus maintaining contractual stability. It has been held in a number of cases that an accomplice or accessory to breach an existing contract is liable for economic loss sustained by a party to the contract. In an action for interference with economic relations, it is necessary that the plaintiff must prove the existence of a contractual relation between him and a third party; that the defendant has knowledge of such contractual relation; and that defendant intentionally, with malice did disturbed said contractual relation. Damage must be proved, but it is presumed when it is a direct consequence of the disturbance and ultimately the breach of contract. Interference may include also inducement or persuasion to a person not to continue with a prospective business relation or preventing a party not to enter such a relation. Interference with a pre-contractual business relation is however considered lawful unless wrongful means are employed. Several factors have to be looked into in deciding impropriety of the means used to interfere. One of these is the motive of the party interfering. Another consideration is the interest of the parties involved in the unlawful interference. To determine whether interference is proper, industrial ethics and practices are substantively necessary. The interference or economic tort does not only protect contractual interest but also ethical and legal interest thus upholding contract as a legal instrument in promoting trade and competition. Unjustifiable Litigation            Unjustifiable Litigation also commonly known as malicious prosecution, an intentional tort has been securely instituted in law. An action for malicious prosecution is a remedy for recovery used by victims injured by unwarranted judicial proceedings. The underlying principle of this tort is an effort to equalize conflicting interests. Plaintiffs have the right to access to courts without concern of inculpation. Public policy requires that defendant’s interest be also protected against unmeritorious litigations through this remediation. Sometimes people, prompted with malice come to court even without probable cause only to harass other people. In a cause of action for malicious prosecution, the plaintiff must establish that the prior action was filed at the behest of the defendant and that it was terminated in his (plaintiff) favor; that it was initiated without probable cause and was brought with malice. However, malicious prosecution cases filed on the basis of absence of probable cause usually do not lie or prosper because it is for the court to determine the existence of probable cause as it is a legal question. Legal authorities said that malicious prosecution deters claimants to institute criminal proceedings for fear of facing excessive litigation after the initial action has been decided not in their favor. In a case, the Supreme Court settled that it is not sensible to desert or loosen the restrictions on malicious prosecution (Sheldon v. AO). Reference Supreme Court of California (l989, January 12). Sheldon Appel Co. v. Albert Oliker, Cite as: 47 Cal.3d 863, 765 P.2d 498, 254 Cal.Rptr. 336. Retrieved on September 16, 2007 from http://www.casp.net/oliker-1.html
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