Torts

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Negligence, Intentional Torts, and Strict Liability

I. Negligence The elements of proving negligence (with examples) 1. defendant has a duty to the plaintiff (to keep the grocery store safe) 2. defendant breached that duty (by leaving a banana peel on the floor for two hours) 3. the breach proximately caused (plaintiff slipped on the banana peel) 4. plaintiff's damages (plaintiff says ouch!) Main defense to a negligence claim -- remember that Georgia is a comparative negligence state - in addition, if a jury finds that the plaintiff is more than 50% negligence, plaintiff recovers NOTHING. Examples of Negligence 1. WRONGFUL DEATH - the measure of damages is the full value of life of the deceased -- it includes economic damages (lifetime income with no deduction for living expenses, etc) and intangible factors such as enjoyment of life -- it's up to the jury to determine this amount. In GA, there is no statutory formula or limit to figure out these amounts. - a surviving spouse shares equally with the decedent's surviving children -- there is no spouse or surviving children, the parents have the right to sue. If the death was caused intentionally, then it would be an intentional tort 2. PROFESSIONAL LIABILITY (MALPRACTICE) - is actually a negligence action against a professional - professionals must exercise the appropriate standard of professional care - there's no cap on damages in GA - An affidavit from a like professional must be filed with the Complaint stating that there was malpractice committed in his/her opinion (or within 45 days of filing the Complaint was filed within 10 days of the statute of limitations) DAMAGESAs we know, there are two parts to building a case - liability and damages. In a personal injury case, we need to know that a plaintiff may recover compensatory damages, which may include medical expenses, lost income and pain and suffering (physical and emotional). There is no limit on pain and suffering in Georgia. Georgia recognizes the tort of loss of consortium - the loss of companionship of a spouse. Remember that punitive damages are NOT recoverable in a simple negligence case - they are recoverable if the defendant committed gross negligence. II. Intentional Torts 1. SLANDER AND LIBEL - Slander is a spoken untruth. Libel is a written untruth Read the Slander statute in the web reading: OCGA 51-5-4 The first 3 items (a 1,2,3) in that statute are statements which are defamatory just by saying them (we call that SLANDER PER SE - where damages are presumed JUST BY MERELY MAKING THOSE STATEMENTS). Since damages are presumed, this falls in the General damages category -- the thinking is that these statements are so bad, someone shouldn't have to prove they were "damaged". Here's an analogy -- if you are ticketed and convicted for following too closely as you rear end someone's car with your own, then when that person sues you in civil court, the civil court will look at your conviction and say to the plaintiff that s/he doesn't need to prove LIABILITY anymore (THIS IS CALLED PER SE NEGLIGENCE). Then all plaintiff needs to do is prove damages. Under 51-5-4a(4), in any other type of statement not found in 1-3, a plaintiff must prove that s/he was actually damaged by the uttered statement through evidence (CALLED SLANDER PER QUOD - WHICH REQUIRES A SHOWING OF SPECIAL DAMAGES). -- 51-5-11 deals with newspapers and libel. If the newspaper publishes an acceptable retraction within 7 days written demand from plaintiff, then it can avoid a future award of punitive damages. Getting the picture of how high stakes a game punitive damages can be? DEFENSES - you need to know that truth is an absolute defense to libel and slander. NEWSPAPERS/FIRST AMENDMENT - NY TIMES V. SULLIVAN - While a "private person" can prevail in libel/slander by showing the defendant was merely negligent, a "public figure" must show the court proof that the defendant knew the statement was false or was reckless in making the statement. Thus, it's easier for a private person/plaintiff to win this type of lawsuit. Other types of Intentional Torts 2. SLANDER/DEFAMATION OF TITLE - the elements: 1- defendant uttered and published (said to third person) slanderous words), 2- the words were false, 3- the words were malicious, 4- damages, 5- plaintiff actually owned title to the property being "slandered" 3. INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS - Elements: 1- defendant acted improperly and without privilege, 2- acted with intent and malice to injure, 3- induced a third party to break a contract with plaintiff or not to do business with plaintiff, 4- damages (example - inducing a bank not to loan plaintiff money with the intent to destroy the business) 4. FRAUD (also known as INTENTIONAL MISREPRESENTATION) 1- a false representation made by defendant, 2- defendant knew the statement was false, 3- defendant intended plaintiff to rely on statement, 4- plaintiff justifiably relies on statement, 5- damages were proximately caused by statement 5. MISAPPROPRIATION OF TRADE SECRETS - be careful not to give up a former employer's trade secrets when going to a competitor as a new place to work - This tort claim often supplements intellectual property claims based on patent and copyright infringement counts in a lawsuit III. Strict Liability Strict liability departs from Negligence in a huge way. In negligence - we assess whether a defendant breached its duty of care to the plaintiff, and we ask the question DID THE DEFENDANT ACT REASONABLY. If the jury finds that it acted reasonably, end of story. In strict liability cases, the defendant is liable even if it acted reasonably. There are 3 types of strict liability cases: 1- keeping wild animals 2- dangerous, legal activities such as blasting roads 3- the manufacture of products (products liability) PRODUCTS LIABILITY PRIVITY OF CONTRACT was abolished by the McPherson case. Privity of contract used to mean that only the purchaser of the product could sue. Today, if you buy a toaster and it blows up, your injured neighbor who is over for breakfast can sue the manufacturer, though she is not in privity of contract with the manufacturer.