INTODUCTION
Definition and types of tort
Tort is conduct that harms other people or their property. It is a private wrong against a person for which the injured person may recover damages, i.e. monetary compensation. The injured party may sue the wrongdoer (tortfeasor) to recover damages to compensate for the harm or loss incurred. The conduct that is a tort may also be a crime. Some torts require intent before there will be liability and some torts require no intent. In other words, in some cases, there is liability for a tort even though the person committing the tort did not have any intent to do wrong.
Types of Torts
There are basically three types of torts: intentional torts, torts based on negligence and strict liability torts.
An intentional tort is a civil wrong that occurs when the wrongdoer engages in intentional conduct that results in damage to another. Striking another person in a fight is an intentional act that would be the tort of battery. 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. Careless conduct that results in damage to another is negligence.
The intent element of these torts is satisfied when the tortfeasor acts with the desire to bring about harmful consequences and is substantially certain that such consequences will follow. Mere reckless behavior, sometimes called willful and wanton behavior, does not give rise to the level of an intentional tort.
If a person commits an intentional tort, this means that he intentionally violated a legal duty he owed to the victim. This is different from a negligent tort, in which the tortfeasor violated the duty that every member of society has to exercise reasonable care in their actions with others.
The distinction between an intentional tort and a negligent tort is important for several reasons. First, if an individual wants to sue for an intentional tort, he must prove that the tortfeasor acted with "intent." This is a separate legal requirement that the plaintiff must fulfil, in addition to proving all the other facts of the case and proving actual damage.
Strict liability, sometimes called absolute liability, is the legal responsibility for damage, or injury, even if the person found strictly liable was not at fault or negligent – the injured party is not required to prove fault – liability is strict. An example of strict liability is injury caused by wild animals in the care of the tortfeasor; because the tortfeasor owns tigers, the tortfeasor is responsible for any injury, without the need for the injured party to prove negligence.
Differences between Crimes and Torts
A crime is a wrong arising from a violation of a public duty. A tort is a wrong arising from the violation of a private duty. Again, however, a crime can also constitute a tort. For example, assault is a tort, but it is also a crime. A person who is assaulted may bring criminal charges against the assailant and may also sue the assailant for damages under tort law. An employee’s theft of his
Main types of torts: trespass and false imprisonment
Trespass
A trespass is an unauthorized action with respect to a person or property.
A trespass to the person consists of any contact with someone’s person for which consent was not given. This is technically described as a battery. An assault would be a situation where a plaintiff reasonably believed a battery upon his person was about to be committed. An example of an assault would be where one person swings his fist at another person. If the person made contact, this would be an assault and battery. A defense to assault and battery would be in cases of self-defense.
A trespass to land involves going on or above the property of another without permission. A trespass can also involve the unpermitted use of the airspace of another’s property as well as actually going on the actual property. However, this rule has been modified to allow the flight of aircraft above the land as long as it does not interfere with the proper use of the land.
A trespass to personal property is the use of someone’s property without the person’s permission. A conversion occurs when personal property is taken by a defendant and kept from its true owner without permission of the owner. Conversion is the civil side of the crime of theft. The concept is based on the tortfeasor converting something to their own use. It also requires an intention to deprive the true owner of their ownership – so if you put a mobile in your pocket thinking it was yours it would not be conversion.
False Imprisonment
False imprisonment involves detaining a person without that person’s consent. It can take the extreme form of kidnapping or the less extreme form of detaining a shopper for suspected shoplifting without reasonable grounds.
A defense to false imprisonment would be consent of the detainee, or if a store owner had reasonable grounds to believe that the detainee was guilty of shoplifting (shopkeeper’s privilege). This privilege allows a store owner (or his employee) to detain a suspected shoplifter based on reasonable suspicion for a reasonable time.
A customer was shopping at the handbag counter of the defendant’s store. She did not make any purchase and left the store. When she was a few feet outside the store, an employee of the store tapped her lightly on the shoulder to attract her attention and asked her if she had made any purchase. When she inquired why, the employee asked, “What about that bag in your hand?” The customer said that it belonged to her and she opened it to show by its contents that it was not a new bag. The employee gave the customer a “real dirty look” and went back into the store without saying a word. The customer then sued the store for false imprisonment. Was the store liable? No.
Judgment would be for the store. There was no false imprisonment because there was no actual detaining of the customer. The circumstances did not show the use of force or threat of force that stopped the customer from proceeding on her way. Her action of stopping and showing the contents of her handbag was voluntary.
Main types of torts: negligence and malpractice
Negligence is a failure to follow the degree of care that would be followed by a reasonably prudent person in order to avoid foreseeable harm. A person can be negligent if he or she acts with less care than a reasonable person would use under similar circumstances.
Bob drove a car on a country road at 35 miles an hour. The maximum speed limit was 45 miles an hour. He struck and killed a cow that was crossing the road. The owner of the cow sued Bill for the value of the cow. Bill said that since he was not driving above the speed limit, there could be no liability for negligence. Was this defense valid? No. A person must at all times act in the manner in which a reasonable person would act under the circumstances. The fact that Bill was driving within the speed limit was only one of the circumstances to consider. The weather or the condition of the road may have made it unreasonable to drive at 35 miles an hour. Driving slower than the speed limit does not in and of itself prove that the driver was acting reasonably.
The reasonable person standard varies in accordance with the situation. The degree of care required of a person is that which an ordinarily prudent person would exercise under similar circumstances. This does not necessarily mean a degree of care that would have prevented the harm from occurring. The elements required to establish negligence are: the presence of duty; a voluntary act or failure to act (an omission) that breaches the duty; proximate causation of harm; and damage (i.e., the breach of duty causes harm to the plaintiff).
Torts involve duties created by law. Just because someone is hurt does not mean that someone else must pay for the harm. There must have been a duty which has been breached. A plaintiff will not be allowed to recover from a defendant if the defendant did not breach a duty that was owed to the plaintiff. For example, if a burglar breaks into my house and trips over an item of furniture, I am not liable to the burglar because I had no duty to him. However, if a guest in my house trips over a piece of furniture, I may have a duty to that guest. The breach of duty must result from a voluntary act or failure to act.
In order for someone to be legally responsible for damage, it is necessary to show that the wrongful act was the proximate cause of the harm. The injury must be shown to be the natural and probable result or consequence of the alleged act of negligence. The plaintiff must prove that the defendant´s negligence proximately caused the Plaintiff’s injury. There may be more than one proximate cause of an accident.
The final element of negligence is damages. A plaintiff may recover monetary damages to compensate the plaintiff for economic losses such as lost wages and medical expenses. A plaintiff
may also recover non-economic losses such as for pain and suffering. The former are claimed on a normal accounting basis, and the latter are at the discretion of the judge.
Malpractice
Malpractice is a failure by a physician or other professional to use the skill and care that other members of their profession would use under similar circumstances. When an accountant, doctor, attorney, or some other professional contracts to perform services, there is a duty to exercise skill and care as is common within the community for persons performing similar services. Failure to fulfil that duty is malpractice.
Nuisance
Nuisance is a civil wrong, consisting of anything wrongfully done or permitted that interferes with or annoys others in the enjoyment of their legal rights. It is anything that annoys or disturbs the free use of one’s property or that renders its ordinary use or physical occupation uncomfortable. A nuisance is anything that interferes with the rights of citizens, the enjoyment of their property, or their comfort. It is to be noted that an unreasonable interference with another person’s use and enjoyment of his/her property is determined by the injury caused by the condition and is not determined by the conduct of the party creating the condition.
A nuisance is differentiated from a trespass to land. A trespass is an invasion of a person’s interest in the exclusive possession of their land, whereas a nuisance is an interference with the use and enjoyment of the land and does not require interference with the possession.
A person injured by a nuisance can recover damages in an action at law for tort. Similarly, damages can also be recovered for injury resulting from the legal use of a property, if such use substantially damages the property of another.
Nuisances are divided into different subheads such as nuisances per se, public or common nuisances, private nuisances, etc.
A public nuisance exists when an act or condition is subversive of public order or constitutes an obstruction of public rights. In other words, a public nuisance involves an unreasonable interference with a right common to the general public. In order to constitute a public nuisance, it is not necessary that it affects the whole community. It is a public nuisance if the injury or annoyance affects the people of a local neighborhood. Public nuisances always arise out of unlawful acts. Therefore, acts that are lawful or authorized by a valid statute, or which the public convenience demands, cannot be a public nuisance.
A public nuisance can constitute either a crime or may be the subject of a civil action by public officials or private individuals. At common law, the term “public nuisance” covers a variety of minor criminal offenses that interfer, for example, with the public health, safety, morals, peace, or convenience.
Public nuisances include for example, a manufacturer who has polluted a stream and might be fined
and be ordered to pay the cost of cleanup. Public safety nuisances include shooting fireworks in the streets or storing explosives.
A private nuisance is a civil wrong that affects a single individual or a definite number of persons in the enjoyment of some private right which is not common to the public. In other words, a private nuisance is a substantial and unreasonable interference with the private use and enjoyment of one’s land. Examples include interference with the physical condition of the land, disturbing the comfort of its occupants, or threatening injury or disturbance in the future.
Nuisances that interfere with the physical condition of the land include vibration or blasting that damages a house; destruction of crops; raising of a water table; or the pollution of soil, a stream, or an underground water supply. Examples of nuisances interfering with the comfort, convenience, or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures, e.g. a landowner burning plastic and old tyres so that the smell and smoke affect his neighbours.
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