Torts and Damages

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

Reasonable Doubt
Government prosecutes
Preponderance of Evidence
Jury system
2-Party suits
Punishment
Voluntary Involuntary
No punishment 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
Torts and Damages
 Negligence- 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
 We all have a duty to act reasonably in
certain situations (driving, public gatherings,
professional relationships, manufacturing
and selling)
 Duty must be based on a specific act- can’t
sue for “general unreasonableness”
 Arch/Engr has no duty to contractor, can’t
sue for tort (in general) except for things
such as safety, injury from design flaw, etc.
Torts and Damages
 Breach- prove that the specific act
was unreasonable for the conditions
(speeding, yelling fire). Harder to
prove than duty
 Damages- injured person must prove
loss- no loss-no tort
 Causation- loss caused directly by
breach (aggravating condition can be
included, but not original condition)
can be hard to prove
 Torts and Damages
 Making a mistake is not the same as negligence.
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
 Negligence per se- violation of statute, 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, ADA, EEO, building codes, etc
 Currently undergoing re-interpretation
Torts and Damages

 Liability of designers to subsequent

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

intent to cause injury or harm makes
tort intentional (difficult to prove intent)
 Fraud (deceit, misrepresentation,
false claim) is the most common
intentional tort in construction
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- 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- claiming a contract breach
as a tort.
 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- 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. Difficult to assess, usually
per diem award. Includes emotional pain
Torts and Damages
 Punitive damages- intentional torts
allow exemplary awards used to
“make and example” out of offender.
Frequently reduced by the court
 Tort cases- McDonalds coffee, Toro
mowers, Philadelphia hospital
 Calls for tort reform, resisted by trial
lawyers. Tort does allow for
eliminating the incompetent, but can
be abused. Key is to find the best
balance