Have you ever wondered why it is that if you get married in one state, youíre considered married in the other forty-nine states as well? This is so even if yours is a common-law marriage, not recognized in the other states. Itís so even if you donít qualify for a marriage license in another state because of its different requirements. Divorce too. Your divorce in a state with requirements totally different from anotherís is still valid there and everywhere else.
A driverís license. If valid in your home state, is valid in all others, even where you might not qualify for one. But this works both ways. If you lose your license in one state, you canít go to another to get one. And if you win a lawsuit in one state but the defendantís money is somewhere else, you can take your judgment to the state where the money is for collection through whatís called a foreign judgment. Why...why. . .why?
Why does all this work? Because of the full faith and credit clause of the Constitution. (Article IV, Section I) Different states must recognize each otherís public and legal acts, records, and court decisions, and give them the same effect as where they are made initially. This is one of those basic legal concepts that most of us donít think about too often; but when we need it, itís there!
A funny word. In French (where it originated) a tort means a 'wrong'. But in the U.S. most people probably think it means a chocolate cake with icing, when they think of it at all! A torte! But, alas, no.
Tort law is part of civil (noncriminal) law. It concerns lawsuits (not prosecutions). These suits arise from injuries (wrongs) mitted by one person, a group, or organization(s) They can be purposeful or negligent.
Here's what happens. You get hurt. Or, someone treats you badly or unfairly. You want to ìsue the bastards.î Tort law answers the question: Is there someone to sue? Or, putting it in legalese, is there a remedy for every tort? Torts deal with civil lawsuits, excluding breaches of contract (Kís). While torts are not part of criminal law, remember that the same action by a defendant (∆) can bring about both a criminal prosecution and a civil lawsuit.
For example, if Bill steals your TV, thatís the crime of theft. It is also the tort of conversion. The district attorney can prosecute for the theft. You can sue for the conversion. Bill is the tort-feasor (doer of the tort!). With this as background, what are some torts?
Torts are divided into 7 basic types:
Every tort has three elements:
Legally, we say there is a proximate cause between the breach and the injury.
These look like simple words-not too technical. But let's define what they mean in this context. First, what is a duty? One personís obligation to another. Duty is based on the relationship of the people involved. For example:
All these cases have a different standard of care, of duty. Itís different if the mailman slips on your steps or if a trespasser does. But, basically, the duty is to act reasonably. What is reasonable? (Ah, the sixty-four-thousand dollar question!)
An important concept in tort law but, as you can imagine, hard for Π and ∆ to agree upon. Lawyers use the ìreasonable person standardî. What would a reasonable person do? Note: You generally donít have a duty to a stranger. Thus, as harsh as it may be, if you see a stranger in serious trouble, you donít have a duty to help. However, laws are changing in this field. In fact, if you help, you better be reasonable! Because, by helping, you assume a duty!
Because it seems harsh to let doctors, nurses, and other medical professionals go about their way without helping strangers in distress, many states have enacted Good Samaritan statutes. The name comes from the Bible. These laws protect from lawsuit doctors and other medical professionals who aid an injured stranger in an emergency at the scene of an accident or injury. The duty of reasonable care does not apply. In such a case the Π can sue the doctor (∆) only if he was reckless or grossly negligent.
The reasonable person standard is an objective, not subjective, standard. A jury can decide if you were reasonable. ìI was doing the best I couldî or ìI thought I was being reasonableî is not defenses if they do not meet the communityís reasonableness standard. Standards are applied to the type of person you are. A reasonable adult. A reasonable lawyer. A reasonable scientist or shopkeeper. Persons with greater knowledge are held to a higher standard. The reasonableness standard does not apply to children unless they are doing adult activities. Thus, if a sixteen-year- old drives a car, he had better be reasonable.
These standards change all the time. For example, right now the communityís standard for drinking and driving is changing dramatically in this country. It used to be viewed as almost funny; now, youíd better not do it, youíd better have a ìdesignated driverî if youíre planning to go out and drink, and on and on. All these new standards are being applied differently than they were twenty or even ten years ago. Next, what is a breach? It is a failure to act reasonably; a failure to use the amount of care a reasonable person would use in that situation.
Negligence occurs if you do something below the standard of what a reasonable person would do in those circumstances. What's the measure? A community standard or statute. Letís say that you are careless with someone to whom you owe a duty. Is that a tort? Not necessarily. Not unless the person is hurt by your negligence. If no one got hurt, you got lucky! Finally, what is causation? Something that causes something else. To figure out if there is the required causation in your case, you have to analyze it in several steps.
Someone you have, expressly or by implication, invited to your property. He may be a customer, servant, and friend. Generally, you are responsible for exercising reasonable care for his safety against latent defects on that part of your property to which he was invited. In addition you have a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe.
For example, in a store, invitees can come into the selling area but not the back, which is posted ìFOR EMPLOYEES ONLY. There they would be trespassers.Licensee:
A person who comes onto your property with permission, but without invitation. Such a person has a right to be there but is there for his benefit, not yours: for example, a door-to-door salesman.
In the old common law you owed these folks less duty of care. Now, by statute in many states, the duty is the same as for invitees.Trespasser:
Someone on your property without invitation or license; someone who commits a trespass on your property. Generally, you owe him less care than an invitee or licensee but will be responsible for conduct that is grossly negligent. Thus you canít set an unmarked trap or leave a large unprotected hole on your property.
An exception is for children under twelve years old. You may be held responsible in their case for maintaining an attractive nuisance as dangerous ìartificial conditionî on your property that a child may play on. If the child gets hurt, you may be liable, even if he is trespassing. For example, a swimming pool with an open gate or no fence at all. On the other hand, a tree the child climbs is probably not an ìartificial condition,î and youíd probably not be liable for an injury.Res ipsa loquitur:
Lovely Latin term to keep in your back pocket just for fun! Literally, this doctrine means, ìthe thing (res) speaks (loquitur) for itself (ipsa). ì Itís used in trying to prove that the ∆ was negligent. Here, one can infer negligence without actually proving it, if (a) the accident would not have happened without negligence and (b) the ∆ had exclusive control of the thing that injured the Π. If the doctrine applies, the Π has made a prima facie case and the jury cannot give a directed verdict for the ∆Product liability:
A manufacturer and seller of a defective product may be liable in negligence. In some cases they are liable also in strict liability.
Now for the other types of torts:
Owning certain types of animals, or engaging in certain types of activities. For example, firearms, if not commonly fired in the particular community or area. If anyone gets hurt, the ∆ may be liable, even if he was not negligent.
And there you have them: many of the major torts that exist in the early 21st century. Stay tuned as new ones emerge to meet changing social, economic, and personal needs. The law is ever changing and organic.
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