Torts and Damages

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Up to now, everything discussed has related to contract liabilities- voluntary assumptions of obligation and risk Tort duties are legal liabilities independent of contract standing- apply to involuntary assumption of liability and risk Tortfeasor- party who breaches a tort duty Victim-party suffering loss due to breach

threatening to touch without consent .Torts and Damages  Types of torts (Names differ by jurisdictionmany types not listed.touching without consent  Assault.untrue written statements causing loss  Slander.misrepresentation for value  Libel.untrue spoken statements causing loss  Battery.unreasonable actions  Fraud. all are civil matters  Negligence.

Torts and Damages Reasonable Doubt Government prosecutes Jury system Punishment Voluntary No punishment Preponderance of Evidence 2-Party suits Involuntary Punishment .

Torts and Damages    Intentional torts carry punitive damages Intent is to make people pay for injuries resulting from their unreasonable acts Four general categories of tort common in construction  Negligence  Intentional tort/ Fraud  Strict liability  Deceptive practices .

failure to act reasonably causing injury to others (most common tort) Must prove all of the following  Existence of duty to be reasonable  Breach of that duty  Damages incurred as a result of that breach  Causation between breach and damage is direct .Torts and Damages   Negligence.

injury from design flaw. can’t sue for tort (in general) except for things such as safety.Torts and Damages    We all have a duty to act reasonably in certain situations (driving.can’t sue for “general unreasonableness” Arch/Engr has no duty to contractor. public gatherings. . etc. professional relationships. manufacturing and selling) Duty must be based on a specific act.

no loss-no tort  Causation. yelling fire). Harder to prove than duty  Damages.prove that the specific act was unreasonable for the conditions (speeding.loss caused directly by breach (aggravating condition can be included.injured person must prove loss. but not original condition) can be hard to prove  .Torts and Damages Breach.

Reasonableness standard protects to some degree Misrepresentation of fact is a special form of negligence when no reasonable grounds for believing a statement can be found  Statement issued as fact (“this drug is safe”)  Statement is false (drug causes heart problem)  No reasonable grounds for belief (drug wasn’t tested)  Party justifiably relies on statement (party takes drug)  Damages result (Party has heart damage) .Torts and Damages   Making a mistake is not the same as negligence.

no proof of duty or breach required        Valid ordinance was violated Injured party is member of protected class Harm suffered is prevented by the ordinance Violation of statute caused harm or damages Party suffered loss OSHA. building codes. etc Currently undergoing re-interpretation . ADA.Torts and Damages  Negligence per se. EEO.violation of statute.

duty exists to subsequent users of a product. Remodeling industrial sites  Liability of designers to subcontractors and contractor differs by jurisdiction   Majority rule. so no damages can be collected from designer except for personal injury .no duty exists.Torts and Damages Liability of designers to subsequent users.

Torts and Damages  California Rule • • • • Balance test under theory of negligence Degree of certainty of harm Foreseeability of harm Closeness of connection between conduct and injury • Advancing policies to prevent future harm • Assignability of moral blame • Difficult to enforce .

Torts and Damages Intentional Tort (Fraud). false claim) is the most common intentional tort in construction  . misrepresentation.presence of intent to cause injury or harm makes tort intentional (difficult to prove intent)  Fraud (deceit.

Torts and Damages  Fraud False representation or nondisclosure of material fact  With intent to deceive  Misleading statement was relied on by complainant  Actual damages result  .

Torts and Damages Deceptive practice laws.  .claiming a contract breach as a tort.discourage fraud and make it easier to bring the case (no longer need to prove intent)  Deception is inherent in the act covered by the statute  Contorts.

Torts and Damages  Contorts Torts carry higher awards than contract cases  Lawyers “prefer” tort claims  Try to claim some specific action under contract is actually a tort  Historic reluctance by the court to allow breach of contract to be turned into a tort  Mostly for personal contracts (not construction)  .

Torts and Damages   Strict liability-only applied in very limited situations such as manufacture of defective products or practice (blasting) Manufacturers of defective products are strictly liable for injury IF     Flaw is present at time of sale AND Flaw causes injury OR Manufacturer fails to warn of risk OR Product has correctable design defect .

Torts and Damages    Strict Liability of product manufacturers is why we have so many warning labels on products Construction contractors are not considered manufacturers of products Assumption of risk.common defense against tort in construction (and elsewhere)  Injured parties are responsible for their own injury if they have voluntarily assume risk inherent in the activity (sign a risk assumption to go bungie jumping) .

Torts and Damages   Proximate cause damages. Difficult to assess.tort damages are generally greater than contract damages because they include foreseeable AND unforeseeable damages (proximate cause) Pain and suffering.compensation for experience of pain and suffering over a specified time. usually per diem award. Includes emotional pain .

McDonalds coffee. Tort does allow for eliminating the incompetent.Torts and Damages Punitive damages. resisted by trial lawyers. but can be abused.intentional torts allow exemplary awards used to “make and example” out of offender. Frequently reduced by the court  Tort cases. Philadelphia hospital  Calls for tort reform. Toro mowers. Key is to find the best balance  .