Law Philospher: ABSOLUTE LIABILITY / STRICT LIABILITY PPC and Tort paper 5 and 6 for LLB part I Punjab Universty

Textes

Code civil art. 230 et s.,246, 345 et s,390, 1109, 1146 et s., 1690, 1257, 1261, 1690, 1985 .

autorizzazione / assenso

consenso dato da un terzo ad un accordo intervenuto fra due o più altre parti

(Dott Coppola,Cons Min Lavoro e Previdenza Sociale,Roma)

EuroDicAutom

Consent: Informed | aufgeklärte Einwilligung nach Aufklärung | consentement éclairé | assenso informato:

Informed consent is that consent obtained only after full disclosure, i.e. after informing the defendant of the medical risks and benefits and alternatives of a medical procedure proposed by a physician. It is a heightened form of consent applied in the field of medical practice to protect lay persons. See, e.g.

Tenuto v. Lederle Laboratories,

1997 N.Y. LEXIS 3219, *; 90 N.Y.2d 606;

687 N.E.2d 1300; 665 N.Y.S.2d 17

Consequential damages | Folgeschäden

Damages which arise not immediately after the initial injury but thereafter yet as a result of the tort. E.g. as a result of a libel the plaintiff cannot marry and so will not be an heir of their spouses parents. The lost inheritance could be seen as a consequential damage.

See: Richmond Redevelopment and Housing Authority v. Richmond Redevelopment and Housing Authority v. Laburnum Const. 195 Va. 827, 80 S.E.2d 574, 580.

Consortium, Loss of | Verlust des Liebespartners | privation de compagnie conjugale:

The loss of the ability to have normal sexual relations with one’s spouse, but also the loss of their services and companionship. It is a damage with both economic, though possibly unremunerated, and non-economic elements - and one more example of damage inflation in the common law of torts.

See: Deems v. Westem Maryland Ry. Co., 247 Md. 95, 231 A.2d 514, 517.

Constitutional Torts | Verletzung verfassungsrechtlicher Freiheiten

While Germany and France have specialized courts for hearing constitutional cases this is not the case in the U.S. See Bivens Claim.

Constitution | Grundgesetz/Verfassung | Loi Fondamentale / Constitution:

Latin. constituere, to make to stand together, to establish. Originally, an important decree or edict. Later, the laws and usages which gave a government its characteristic features.

The fundamental law of the state (e.g., Grundgesetz)

The constitution of the state may refer literally to the legal arrangements which characterise the state or metaphorically to the institutions and relations of the organs of the state across time. We concern ourselves here with the former, that is the literal legal definition.

In the common law constitutions are termed either written or unwritten. The United Kingdom has an unwritten or customary constitution, whereas that of the United States is written. A written constitution can be the basis of judicial review, and under British rulings since Coke, an unwritten constitution cannot be the basis of judicial review.

Verfassung

die Gesamtheit der geschriebenen oder ungeschriebenen Rechtsnormen,welche die Grundordnung eines Staates festlegen

loi constitutionnelle / loi fondamentale / constitution

loi ou ensemble de lois fondamentales qui règle le mode de délégation ou d'exercice de la souveraineté nationale, la forme du gouvernement, les attributions et le fonctionnement des pouvoirs de l'Etat ..

Contra bonos Mores / Against Good Morals | Sittenwidrig

No contract may be made which is against good morals. Such contracts are void as against public policy.

Contributory negligence | Part de responsabilité de la victime dans un accident / Négligence concurrente / Faute de la victime / Imprudence concurrente / négligence concurrente | Mitgefährdung :

Contributory negligence is that situation where the plaintiff’s own negligence helped bring about the tort. In most American jurisdictions it has been replaced with the doctrine of comparative fault. But in those jurisdictions where it survives, a finding of contributory negligence on the part of the plaintiff will operate as a complete bar to he plaintiff’s claim. Contributory negligence is an affirmative defense which the defendant must plead and prove to prevail.

See also: exemplary damages (syn.)

Punitive damages are those damages awarded in case of willful, wanton, or malicious conduct. They may even be available in cases of reckless negligence if the damages are particularly severe or in cases of fraudulent acts. Punitive damages serve to punish the defendant and deter others. The plaintiff must prove both the necessity and extent of punitive damages according to the ordinary standard of a preponderance of the evidence. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is reckless if it reflects a complete indifference to the safety and rights of others.

See: Wetherbee v. United lns' Co. of America, 18 C.A.3d 266, 95 Cal.Rptr. 678, 680.

Damages, Special | Ersatz eines konkretes Vermögensschadens | dommages-intérêts spéciaux

Those damages which do not arise ordinarily out of the injury but which arise extraordinarily and thus must be specifically plead and proven. Such damages are nonetheless concrete and material as opposed to abstract. That is they are calculable in economic terms. Special damages must be plead and proven in cases of slander. E.g. a plaintiff’s has been burgled, and as a consequence must seek lodging elsewhere. This consequential damage, having to pay a hotelier, must be specially plead and proven.

Sometimes the special damage is said to constitute the substance of the action itself; for example, in an action wherein the plaintiff declares for slanderous words, which of themselves are not a sufficient ground or foundation for the suit, if any particular damage result to the plaintiff from the speaking of them, that damage is properly said to be the substance of the action.

Special damages can include medical bills, repair and replacement of property, lost wages and other concrete damages which are not abstract speculative or subjective.

See: Twin Coach Co. v. Chance Vought Aircraft Inc., 163 A.2d 278, 286.

Damages, Treble / Treble Costs | Strafschadensersatz

Treble damages is the measure for an award of punitive damages. The actual calculation of punitive damages is not fixed according to a formula and must in all cases be proven by the plaintiff, first as to existence, second as to extent. However those damages can be as high as three times the substantive damages plus the plaintiffs attorney’s fees and costs. Treble damages may also be governed by statute which may abrogate the common law rule.

E.g., if a jury awards twenty dollars damages and punitive damages would be forty dollars more. However the construction of treble damages is different from that of treble costs.

Damages, Treble costs

Treble costs are sometimes awarded by statutes. When an act awards treble costs, the party is allowed three times the usual costs, excepting the fees and costs of their attorney which are not trebled.

Damnum sine injuria

Literally condemnation without injury, often mis-translated as damages with no injury but in fact would be better translated as injury (a wrong) with no damages (a measure).

Refers to the legal situation in which plaintiff’s right is not respected by another but where the breach of plaintiff’s right does not cause a damage, or at least not a calculable or admissible damage. A finding of damnum sine injuria can be the basis for a finding of nominal damages (q.v.).

Deceit | Arglistige Täuschung | Betrug

Deceit is a tort of fradulent misrepresentations: it’s elements are:

1) A fraudulent statement

2) Made with intent to decieve

3) Which induces reliance on the part of the plaintiff

4) And results in injury to the plaintiff.

The tort will also lie where the statement was made with reckless disregard as to its truth or falsehood.

Deceit is similar to the tort of passing off; however in the tort of deceit the injured plaintiff is a consumer, and in the tort of passing off the injured plaintiff is a competitor.

In some jurisdiction deceit or fraud is a statutory tort and includes an action against false advertising.

See: Karlin v. IVF America, 1999 N.Y. LEXIS 815, *; 93 N.Y.2d 282; 712 N.E.2d 662; 690 N.Y.S.2d 495 (Suit for false advertising permitted under fraud statute in case of medical misrepresentation).

Defamation | Verleumdung / Üble Nachrede / Beleidigung

Communication to third parties of false statements about a person such that the statements injure the person’s reputation or dissuade others from associating with them.

There are two forms of defamation, slander, which is oral and libel which is written. In cases of slander, damages must be proven, but in cases of libel damages are not presumed and must be proven.

Truth is a defence to an accusation of defamation.

This tort corresponds, roughly, to the German torts of Verleumdung, üble Nachrede, and Beleidigung.

Beleidigung is a more extensive injury than defamation and includes words which are insulting or emotionally injurious.

At common law in England a court could order the defaming defendant to offer an apology.

See, e.g.

McGowen v. Prentice, La.App., 341 So.2d 55, 57.

Wolfson v. Kirk, Fla.App., 273 So.2d 774, 776.

Defamation and Public Figures

Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment.

Defamation and the Constitution

In the U.S. the First Amendment freedoms of speech and press must also be considred. New York Times v. Sullivan, 376 U.S. 254, 264 (1964); Masson, 501 U.S. at 510. The U.S. constitution protects statements of opinion on matters of public concern that do not contain or imply a provable factual assertion. Milkovich, 497 U.S. at 20.

Defamation and Opinion

To determine whether a statement implies a factual assertion, courts examine the totality of the circumstances in which it was made. They look at the context and contents which the work present – the subject of the work and the setting in which the subject is treated. The court will look to the language for hyperbole or figurative language. They look to see whether the statement can be proven or disproven and whether it merely expresses an opinion.

'[T]he First Amendment requires that the courts allow latitude for interpretation.' Partington, 56 F.3d at 1154 (quoting Moldea v. New York Times Co., 22 F.3d 310, 315 (D.C.Cir.), cert. denied, 115 S.Ct. 202 (1994)).

Defamation, Fact or Opinion

A defense to defamation is that the supposedly defamatory statement was in fact merely an expression of a personal subjective opinion. To determine whether a statement is merely an opinion, the court puts itself in the position of a reasonable person percieving the statement in the totality of circumstances. "what constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole." (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601.) Where the statement is 'cautiously phrased in terms of apparency,' it is less likely to be seen as an assertion and more likely to be seen as an opinion. Other facts and circumstances of the publication must also be considered. The statement must also be seen as a whole: 'It may not be divided into segments and each portion treated as a separate unit.' It must be read as a whole in order to understand its signification. import and the effect which it was calculated to have on the reader, and construed in the light of the whole scope and apparent object of the writer, considering not only the actual language used, but the sense and meaning which may have been fairly presumed to have been conveyed to those who read it.

Default / Defect | Fehlverhalten / Fehler (?)

A flaw in a product which causes it to malfunction which malfunction may lead to a tort. See: products liability.

A defect is ordinarily a condition precedent to the finding of a tort under a theory of strict liability. However there are exceptions to the rule: in cases of negligent supply by a merchant of an inherently dangerous product to minor the manufacturor can also be held liable.

Defective Product

Where a product is defective the products manufacturer can be implicated in tort on a theory of strict liability.

A product is in a defective condition, i.e. is unreasonably dangerous to the user, when it has a propensity or tendency for causing physical harm beyond that which would be contemplated by the ordinary user.

A defective condition is a legal cause of injury if it directly produces the injury. A defective condition may be a legal cause of damage even though it operates in combination with the act of another, or some other natural cause.

Thus, in cases involving defective or unreasonably dangerous products the manufacturer may be liable even though it exercised all reasonable care in the design, manufacture and sale of the product in question.

Manufacturers are not on always liable for accidents resulting from misuse of their products. The manufacturer is not an insurer. The mere possibility that injury result from the use of a prodcut is insufficient to impute liability to a manufacturer. (Moomey v. Massey Ferguson, Inc., C.A.N.M., 429 F.2d 1184. 1184.) here is no duty upon the manufacturer to produce a product that is 'accident-proof.' However the manufacturer is required to make a product free of defective and unreasonably dangerous conditions.

See: Manieri v. Volkswagenwerk, A.G., 151 N.J.Super. 422, 376 A.2d 1317, 1322.

Defence

French défense: Latin defensa: defendere, to strike down or away, ward off, repel. Mid. Eng. defence.

That which is proposed by the defendant to defeat their opponents claim by denial of the injury, by justification of the cause of injury, or by reducing or eliminating the damages therefrom.

Defence | Einwendung / Rechtfertigung

Evidence offered by the accused to refute a charge.

Defence, Affirmative

A defence based not on the falsehood of the accusation but rather upon some excuse or justification (q.v.) which may limit the damages in whole or in part. Common affirmative defences include assumption of risk, incapacity, self defence and the statute of limitations among others. The defendant bears the burden of proof as to affirmative defences.

Defence, Dilatory.

A defence made not on the merits but to obstruct and harrass the prosecution of the claim and which does not touch upon the substantive merits of the claim.

Defence, Equitable

A defence founded not on a theory of law but on a theory equity or on both a theory of law and of equity. See: Equity

Defence, Full.

A defence in the common law which contests both the finding of damages, that the defendant was negligent, and the extent thereof, that if the defendant were negligent, that his damages would be not what the plaintiff claims but some other lower value.

Defence, General

A general denial of the material allegations of a claim.

Defence, Legal

A defence made on a theory of law as opposed to equity.

Defence, Peremptory

A defence which asserts that the plaintiff does not have or never had a cause of action.

Defendant | Beklagte

The party against whom recovery is sought and thus s/he who defends. The party complained against. In criminal cases, the person accused of the crime. In civil matters, the person or organization that is being sued.

In equity actions the defendant is sometimes called the respondent. In practice this term has disapperead with the merger of law and equity. The term respondent is also, and much more commonly, used to designate the person responding to an appeal.

Delict/Tort | Delikt (~Haftung)

Latin: Torquere, To twist. French: Tort – Wrong

A private, i.e. civil and not criminal, wrong or injury other than an injury resulting out of a contractual obligation, for which the law will grant a remedy. See: prima facie tort. See: tort, prima facie tort

Deterrence | Abschreckung / Prävention

One of the theories upon which liability in tort is justified. The idea being simply that the liability in tort will deter and prevent negligent errors.

Discernment | Einsichtsfähigkeit

Being of such an age that the law will impose ordinary legal responsibility upon the person. Having attained the age of majority and suffering from no incapacitating infirmity. See: children, capacity.

Disclaimer / Waiver |

Ordinarily a tort will imply a remedy – ‘for every right there is a remedy’. However a plaintiff may have waived their right, either expressly or implicitly. Where that waiver was knowing, (i.e. appreciating the risks and dangers) intelligent and voluntary (absence of coercion) that plaintiff will not be able to recover for they have accepted the risk and thus the damage.

To avoid tort liability manufacturors and merchants will often include disclaimer clauses in their sales contracts. However these clauses may – or may not – be declared void as against public policy.

Discrimination | Diskriminierung

The effect of a statute which arbitrarily affords certain privileges to one class of persons yet denying them to another class of persons where no reasonable distinction can be made between the two classes. Unfair treatment or denial of rights or privileges to persons because of their race, age, nationality or religious heritage or convictions.

Baker v. California Land Title Co., O.C.Cal., 349 F.Supp. 235, 238, 239.

Division of the burden of proof | Beweislastverteilung

In some cases the burden of proof of certain elements of the claim will be on one party, while other elements of the same claim will be on the other. For example, in cases of libel, the plaintiff must prove the defamatory assertion after which damages are presumed. The defendant however can move to prove the truth of the matter asserted - but will bear the burden of proving the truth of the libelous statement.

Due Care / Standard of Care

The care that an ordinarily reasonable and prudent person would use under the same or similar circumstances. Proving the failure to exercise due care toward a person who one has a legal duty resulting in injury to that person establishes a prima facie tort. Due care is one of the standards of care (q.v.) in tort.

Physicians are held to a higher standard of care, not that of a reasonably prudent person but of a reasonably prudent physician.

Gillette v. Tucker, 67 Ohio St. 106, 65 N.E.

865.

Bruni v. Tatsumi, 46 Ohio St.2d 127, 129, 346 N E.2d 673, 676

doctors

Duress | Zwang / Nötigung

Overwhelming force which compels a defendant to act or fail to act to the injury of another. Though that act or ommission would normally constitute a tort, here it may not if the defendant can prove that their conduct was justified because of duress.

Hyde v. Lewis, 25 lll.ApP.3d 495, 323 N.E.2d 533, 537.

Williams v. Rentz Banking Co., 112 Ga.App. 384, 145 S.E.2d 256, 258.

Duty

Legal or moral obligation. When recognised as a legal obligation the precondition for all torts.

Rasmussen v. Prudential lns. Co., 277 Minn. 266, 152 N,W.2d 359, 362.

Duty of Care | Verkehrspflicht („Sorgfaltspflicht“)

The duty of the defendant to act as a reasonably prudent person. This duty may be elevated to one of utmost care in certain situations such as bailors

Duty to act | Pflicht zu Handeln

Ordinarily the common law, unlike continental civil law, does not impose an affirmative duty to act. However the exceptions to the general rule of “no duty” are numerous: For example family members, working colleagues and contracting parties will all have a legal duty in tort to act non-negligently toward each other.

Duty to ensure safe premises | Verkehrssicherungspflicht

An owner of real property is under a duty to warn invitees of hidden dangers on his or her property.

Duty, Organisational | Organisationspflicht

The liability of a corporation is the same as that of a natural person. However the corporation’s shareholders – unlike its board of director’s and employees – will only be liable for the torts of the corporation to the extent of their investment. Like any employer a corporation can be held liable for torts to it’s employees which occur at the workplace according to the vicarious liability imposed by the principle of respondeat superior (q.v.).

Due Care / Standard of care

The ordinary care which one is obliged to use towards others to protect against risk of injury. The care attention and watchfulness which a reasonable person would exercise under the circumstances in which he or she finds herself. Failure to meet this standard constitutes one element of a prima facie tort, namely breach of legal duty. The standard of care may be higher than ordinary due care so the terms are not exactly synonymous. Due care is the ordinary standard of care.

The general rule is that the standard of care is that of a reasonably prudent person. Exceptionally higher or lower standards of care can be imposed.

Murray v. De Luxe Motor Stages of lllinois, Mo.App., 133 S.W.2d 1074, 1078.

Duty

Anglo-French deuté indebtedness, obligation, from deu owing, due.

An obligation, whether imposed by law or assumed by contract to conduct oneself according to a certain standard such as the standard of ordinary care. For example landowners have a duty to maintain safe premises, drivers have a duty to drive responsably. Proving the existence of a duty is one element of a prima facie tort. (proving its breach, causation in fact, and legal causation are the others).

No Duty Doctrine

The general rule at common law is that persons are generally not subject to legal duty. This is not the case in civil law jurisdictions. There are many exceptions to the general rule in the common law.Family relations and co-workers owe a duty to each other. Duty can be assumed by one’s actions. Thus though one has no duty to aid a stranger once aid is offered to them that aid must be non-negligent.

Duty, breach

Literally, to break.

The term used to designate the failure to comply with one’s legal duty, for example in tort the legal duty to act non-negligently. Breach of an existing legal duty is one element of a prima facie tort (q.v.).

-E-

Efficient Cause

A synonym for proximate cause. Hillis v. Home Owners' Loan Corporation, 348 Mo. 601

That cause which vhich Produces results which would not have come to pass except for its interposition, and tor which, therefore, the person who set in motion the owgina chain of causes is not responsible.

Southland Greyhound Lines v. Cotten, Tex.Civ.App., 55 S.W.2d 1066, 1069

See also: intervening / superseding cause.

Emergency | Notfall ?

At common law – unlike the continental civil law - there is no duty to rescue persons in an emergency. The only justification for that rationale is the fact that some persons may not in an emergency have the calm required to perform a rescue.

Statutes in some common law jurisdictions impose an affirmative duty to rescue or perform medical treatment on physicians and other persons employed as professional rescuers.

State v. Perry, 29 Ohio App.2d 33, 278 N.E.2d 50, 53.

Eminent domain

Eminent domain is the right of the soveriegn over all property within its territorium. It is the right of the soveriegn to confiscate without compensation. Constitutional limitations on this sovereign power may exist and do exist in the United States where property when taken by the government must be fairly compensated and may only be taken for public use.

Authority of Cherokee Nation of Oklahoma v. Langley, 555 P.2d 1025, 1028.

Emotional Distress | Gefühlsschaden

Damages for emotional distress were greeted with skepticism at common law, all the more so where no claim of material injury was averred. Still one could consider assault an example where even the common law would permit recovery for intentional infliction of emotional distress. And later the common law did recognize exactly this tort: an intentional, i.e. willfull, action undertaken to cause emotional distress can be a cause of action in tort. More dubious however is the claim of a tort for negligent infliction of emotional distress. Such claims have been recognized by some jurisdictions but only very recently and not without skepticism and criticism. See: Negligent infliction of emotional distress, intentional infliction of emotional distress.

Employee vs. Independent Contractor

To determine whether a person is an employee or a contractor a number of factors must be considered in their totality: none of the factors are dispositive alone but taken together with the others will lead to the determination of the status of the person. A designation of the relationship by the parties without the underlying relation is not controlling.

One of the most important considerations is the degree of control exercised by the company over the work of the workers. Another factor to be considered is the duration of the relationship: independent contractors are seasonal whereas employees are generally employed indefinitely at will. An independent contract will tend to be paid not by the hour but by the job as a flat rate or on commission.

Persons injured by the negligence of an independent contractor will not be able to recover against the person who bid the services of that contractor unless there was negligence as to the hiring of the contractor. In contrast victims of ordinary employees may have a recovery either against the employer or the employee who will be jointly and severally liable under a theory of respondeat superior. See: respondeat superior, vicarious liability, organizational liability.

Riverbend Country Club v. Patterson, Tex. Civ. App., 399 SW.2d 382, 383 (1965)

Hammes v. Suk, 291 Minn. 233, 190 N.W.2d 478, 480, 481.

Sparks v. L. D. Folsom Co., 217 Cal.App.2d 279, 31 Cal.Rptr. 640,

Housewright v. Pacific Far East Line, Inc. (1964) 229 Cal. App. 2d 259, 40

Cal.Rptr. 208, 212;

Dowling v Mutual Life Ins. Co. of New York, 168 So.2d 107, 112 (La.App.1964).

Enterprise liability

Liability of a business either for the on-the-job injuries of its employees or for the collective liability of an entire industrial sector where it is clear that that sector had produced a defective product but where the specific manufacturer cannot be identified. See mass tort, market share liability (q.v.).

Employment

The hiring of a person for compensation. Whether an act occurred “within the scope of employment” will determine the liability of the employer for the torts of the employee toward third parties.

Hinton v. Columbia River Packers' Ass'n, C.C.A.Or., 117 F.2d 310. 117

Employment-at-will

Employment for so long or so brief as the employer chooses. This is the usual form of employment in the United States. At will employees may be fired at any time for any reason or no reason at all.

Epedemiological proof

The study of medicine and probabilities in order to determine the causation of illness and the application of these two sciences to the proof of facts in a court of law. Epedemiological proofs are most often used in cases of toxic torts (q.v.) and mass torts (q.v.).

Equity

Latin aequitat- aequitas fairness, justice, from aequus equal, fair

Equity can refer to an interest in a property not equivalent to the value of the property. This meaning is not our concern here but is mentioned in order to prevent further confusion in an already dense and obscure area of the common law.

Historically speaking the equity courts assured the function of justice as fairness and corrected the mechanical legalistic application of rules of the law courts.

The courts of equity arose in England from a need to provide relief for claims that did not conform to the writ system existing in the courts of law. Originally, the courts of equity exercised great discretion in fashioning remedies. Over time, they established precedents, rules, and doctrines of their own that were distinct from those used in the courts of law.

The courts of equity were instituted by the King, then through his Chancellor to correct the harsh legalism of the law courts. As a special and discretionary correction instance the equity courts imposed moral restrictions upon the plaintiffs and also limited the remedies they would award. While some remedies would only be available at law, others would only be available at equity (namely injunction and specific performance). Thus a procedural legalism developed regqrding legal or equitable jurisdiction. This legalism however recreated the very problem the equity courts were intended originally to correct! This situation has been remedied somewhat by the fusion of law and equity courts into one general court of first instance both in the U.S. and the U.K. – though the procedural distinctions continue to survive.

Gilles v. Department of Human Resources Development, 11 Cal.3d 313, 521 P.2d 110.

Evidence

Those objects or statements which tend to prove or disprove the elements of a claim. The things presented in court for the purpose of proof of matters there asserted.

Taylor v. Howard, lll R.I. 527, 304 A.2d 891, 893.

Testimony, documents, photographs, maps and video tapes are all examples of evidence.

Evidence, Clear and Convincing | hohe Wahrscheinlichkeit

See supra clear and convincing evidence

Beyond reasonable doubt | mit an sicherheit grenzende Wahrscheinlichkeit

A standard of proof in the common law.

State v. Dubina, 318 A.2d 95, 97.

Preponderance of | Überwiegende Wahrscheinlichkeit

See: Proof by a preponderance of the evidence infra

Presentation of evidence | Beweisaufnahme

See Presentation of evidence infra

Presentation of evidence | Beweisaufnahme

Evaluation of evidence | Beweiswürdigung

The determination of the trier of fact as to whether the movant has carried their burden of proof, i.e. whether the means of proof meet or exceed the standard of proof.

Excuse.

A reason alleged for the doing or not doing a thing. An excuse can reduce damages partially or entirely. Excuses are either because the tort feasor had no choice or because they had no intention to commit the act or its consequences. Minor children, lunatics, and the infirm may be excused due to their lack of discernment. Self defence and destruction of a good to prevent a greater evil is an excuse because the defendant had no choice.

Expectation damages | Erfüllungsinteresse

Those damages which a plaintiff sustains not based on the injury but because of the loss of some future, possibly speculative, stream of income. Courts will be hostile to expectation damages because of their speculative character.

Extent of Liability | Haftungsausfüllung

The principle that, once a foundation of liability has been determined, that that liability must be discharged; also the methods by which that liability is discharged

-F-

Fault | (zivilrechtliches) Verschulden

The entire system of negligent torts, with the exception of strict liability, is predicated on the notion of some fault, i.e. the absence of the care of a reasonably prudent person. Fault can be defined as negligence or the failure to perform a legal duty.

l Continental Ins. Co. v. Sabine Towing Co., C.C.A.Tex., 117 F.2d 694, 697.

Kersey Mfg. Co. v. Rozic, 207 Pa.Super, 182, 215 A.2d 323, 325.

Fault, Comparative | Mitverschulden

See negligence, comparative (syn.)

Fualt, Contributory | Mitverschulden

See negligence contributory

Federal Law | Bundesrecht

The United States, like many other former British colonies, is a federal system predicated upon the dual sovereignty of the states/provinces on the one hand, and on the national soveriegn at another. Germany is also a federal system, however the German federal government has broader powers than that of the United States

Fellow servant rule | Nicht Haftung des Arbeitgebers, wenn ein Arbeiter schuldhaft einen anderen Verletzt

At common law an employer would not be held liable for torts injuring an employee which occurred on the premises of the work-place but which were the fault of one of his servants. Prior to the industrial revolution, where there were both fewer and less serious accidents and where there was less mobility the fellow servant rule made sense. But with the reality of grave injury and highly mobile employees the necessity of providing at least de facto insurance for workers led to the abandonment of this rule and a determination of a general liability for an employer for all torts occurring at the work-place in the scope of the employees duties. This general liability is known as the principle of “respondeat superior”.

Walsh v. Eubanks, 183 Ark. 34, 34 S.W.2d 762, 764.

Southern Ry. Co, v. Taylor, 57 App.D.C. 21, 16 F.2d 517, 519.

Foreseebility | Vorhersehbarkeit

The modern determination of a negligent tort is dependant upon the foreseeability of the tort arising from the defendants conduct. That is, whether a reasonably prudent person would be able to foresee that their conduct would result in damage to the plaintiff.

Emery v. Thompson, 347 Mo. 494, 148 S.W.2d 479, 480.

Clark v. Wagoner, Tex., 452 S.W.2d 437, 439.

Wyatt v. Motsenbocker, Tex.Civ.App., 360 S.W.2d 543, 546.

Foundation of liability / basis of liability | Haftungsgrund

The principle that a tort must first be grounded in some factual instance. This principle of German law has no exact conceptual equivalent in the theory of common law torts though of course in practice analogues and paralells can be found.

-G-

General Contract Terms | Allgemeine Geschäftsbedingungen

Those clauses of a contract which are not negotiated. These clauses, often in fine print, may or may not be read and may or may not be comprehended or comprehensible. Thus courts may, at their discretion, set them aside if manifest injustice results under a theory of unconscionability. German law appears however to take these clauses much more seriously, both to the benefit of the consumer and to society at large through greater legal certainty. [?]

Governmental immunity

The principle of the common law is that “the king can do no wrong” – that is that there be no remedy against the sovereign because of sovereign immunity unless the sovereign waive that immunity. This principle continues to exist in America however the government consents to be sued according to the federal tort claims act.

Local governments can be sued directly under 42 U.S.C.A. § 1983

Monell v. Department of Social Services of N. Y., 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789.

See: Sovereign Immunity (syn)

Principe Compania Naviera, S.A. v. Board of Com'rs of Port of New Orleans, D.C.La., 333 F.Supp. 353, 355.

Governmental Liability | Staatshaftung

The liability of the government in tort was limited at common law by government immunit (also known as soveriegn immunity) (q.v.). This has changed with the introduction of tort-claim statutes, both by federal and state governments.

-H-

Honour; Reputation : Ehre

The moral right of a person to be held in good esteem by the community until their comportment prooves that they are in fact otherwise.

Hospital Liability | Krankenhausträgerhaftung

Hospitals may be immune from torts either as charities, when run by the private sector, under the principle of charitable immunity or, when run by the state, under a theory of governmental immunity. This immunity however would not exculpate the negligence of the hospital’s employees.

-I-

Immunity:

See governmental Immunity

Independent Contractor

See: employee vs. independent contractor

Informed Consent

See: consent, informed

Insurance | Versicherung

Industrialisation led to serious work-place accidents. Consequently to avoid the worst injustices governments enacted mandatory insurance systems to cover workers against such accidents. The tort system also plays an insurance role, but is generally not as efficient due to the costs of attorneys as an insurance system.

First party | Schadensversicherung

Insurance by a person of their person or property. Such insurance could arguably be considered as deductible from whatever damages award that the insured receives in the event of being victim of a tort-feasor. In cases of obligatory insurance a good argument can be made that reducing the damages award by the insurance is just, particularly in cases of no-fault liability such as auto accidents. However in cases of voluntary assurance the collateral source rule would be perverse: it would undermine the deterrence function of tort law by permitting plaintiffs to escape unsanctioned or under-sanctioned and punish prudent plaintiffs who seek insurance.

Third party | Haftpflichtversicherung

(Obligatory) Insurance of persons against accidents that they cause. Such insurance where mandatory is clearly legal. What of cases where the insurance is not mandatory? There the risk is percieved that permitting insurance coverage may lead to irresponability. However that rationale is not strong: the costs of litigation, both in terms of money and time, as well as the threat of punitive damages and higher premiums indicate that the deterrence function of tort law is probably not undermined by permitting insurance to cover tortious losses.

Social | Sozialversicherung

As explained above, social insurance is a mandatory insurance coverage which is intended to spread losses for injury through society. Social insurance serves the goal not of deterrence or punishment or even prevention but rather the goal of compensation.

Immunity

Exemption from legal duties. In so far as torts are concerned, immunities may be classified according to their extent, being absolute or qualified, or their object, being governments or persons.

Governmental Immunity

A principle precluding the institution of a suit against the government without its consent.

Governmental immunity exempts the government from liability for its torts. It is referred to as either governmental immunity or as soveriegn immunity. The terms are synonymous.

This principle continues to exist in America however the government consents to be sued according to the federal tort claims act. According to Holmes, the "sovereign is exempt from suit [on the] practical ground that there canbe no legal right against the authority that makes the law on which the right depends." 205 U.S. 349, 353.

"[S]tatutes waiving the sovereign immunity of the United States must be`construed strictly in favor of the sovereign." McMahon v.United States, 342 U.S. 25, 27 (1951).

The government can waive its immunity.

Local municipalities often enjoy “regulatory immunity” for those tasks which arise out of any of the municipality's regulatory decisions involving cable television. See, e.g.

Caprotti v. Town of Woodstock, 1999 N.Y. LEXIS 3729, *; 94 N.Y.2d 73; 721 N.E.2d 957; 699 N.Y.S.2d 707

Types of Personal Immunity

Personal immunities protect government official from personal liabilities for torts committed in the scope of their office. Personal immunities are either qualified or absolute. For a good summary see

Lauer v. City of New York, 2000 N.Y. LEXIS 907, *; 95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112

Qualified Immunity

Qualified immunity protects government officials from personal liability for the torts they commit in the service of the government. It protects them “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

"Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by theplaintiff was not `clearly established' or the officer could have reasonably believed that his particular conduct was lawful." Romero v. KitsapCounty, 931 F.2d 624, 627 (9th Cir. 1991) (emphasis added). Furthermore, "[t]he entitlement is an immunity from suit rather than a mere defense to liability; .. . it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

The qualified immunity test requires a two-part analysis: "(1) Was the law governing the official's conduct clearly established? (2) Underthat law, could a reasonable officer have believed the conduct was lawful?" Act-Up!, 988 F.2d at 871; see also Tribble v. Gardner, 860 F.2d321, 324 (9th Cir. 1988), cert. denied, 490 U.S. 1075 (1989).

Even where there has been a constitutional violation immunity will protect the government officer if he or she "could have reasonably believed that hisparticular conduct was lawful." Romero, 931 F.2d at 627.

"[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision'within the meaning of 28 U.S.C. section 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530(1985).

Qualified immunity only applies to the acts of the government official undertaken in the scope of their office.

Absolute Immunity

Absolute immunity is unconditional immunity from all personal civil liability, e.g. diplomatic immunity.

Charitable Immunity

Immunity from civil liability and particularly as regards negligent torts that is granted to a charitable or nonprofit organization such as a hospital.

Corporate Immunity

Immunity from liability in tort granted to an officer of a corporation who acted in good faith within the scope of their duties.

Discretionary Immunity

Qualified immunity from civil liability for tortious acts or omissions that arise from a government employee's discretionary acts performed as part of their duties

Executive Immunity

Immunity granted to officers of the executive branch of government from personal liability for tortious acts or omissions done pursuant to their duties. The US president's executive immunity is absolute, the immunity of other federal executive officials is qualified.

Judicial Immunity

Absolute immunity from liability that is granted to judges and court officers such as grand juries and prosecutors and for tortious acts or omissions done within the scope of their jurisdiction orauthority.

Legislative Immunity

Absolute immunity from liability that is granted to legislators for tortious acts or omissions done in the course of legislative activities.

Official Immunity

Discretionary immunity from personal liability that is granted to public officers for tortious acts and omissions

Ministerial / Discretionary distinction

The law in this field is intricate and frankly byzantine.

Where municipalities have waived their common-law tort immunity for the negligence of their employees, a distinction is drawn, between "discretionary" and "ministerial" governmental acts. A public employee's discretionary acts--meaning conduct involving the exercise of reasoned judgment--may not result in the municipality's liability even when the conduct is negligent. By contrast, ministerial acts--meaning conduct requiring adherence to a governing rule, with a compulsory result--may subject the municipal employer to liability for negligence (see, Tango v Tulevech, 61 NY2d 34, 40-41). No one disputes that the Medical Examiner's misconduct here in failing to correct the record and deliver it to the authorities was ministerial.

Lauer v. City of New York, 2000 N.Y. LEXIS 907, *; 95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112

Imputation | Zurechnung

The determination of a legal duty or right to a person. The imputation may occur through implication or through legal fiction, i.e. a constructive duty or right.

Imputed Negligence

Negligence where the fault of one person is transferred to another. For example, the negligence of a child may be imputed to a parent or that of a worker to his or her employer.

Schmidt v. Martin 212 Kan. 373, 510 P.2d 1244, 1246.

See also: respondeat superior, master and servant, children.

Indemnity | Entschädigung

Compensation given (often from an insurance fund) to make whole the injury already sustained. May refer either to compensation via private insurance, social insurance or indemnisation of the victim of a tort by the tortfeasor through whatever resources the tortfeasor has.

Independent Contractor | selbständiger Vertragspartner

A person or business who serves another but on their own account, thus generally being paid either a flat rate or commission. The independent contractor is not subject to the control of she who hires them and thus the person who engages the contractor is not liable for the acts or ommissions of the contractor.

informed consent

A rule of full disclosure of all relevant facts which is necessary prior to the validity of a waiver of rights. Informed consent is most often a statutory obligation and effects most usually the field of medicine. Thus the physician must inform the patient of the risks and advantages of the procedure or medicine as well as the possible alternatives so that the patient can make a fully informed choice. Except in emergency, physicians must obtain the informed consent of the patient prior to treatment.

Injunction | Unterlassungsanordnung

An injunction at common law is an equitable remedy which can bar, either temporarily or permanently, and either prospectively or retrospectively any conduct of a defendant which constitutes a nuisance. Breach of such injunction will give rise to liquidated damages.

Gainsburg v. Dodge, 193 Ark. 473, 101 S.W.2d 178, 180.

Injury | Verletzung (eines rechtlich geschützten Interesses)

Injury implies damages and although the two terms are not synonyms they are very nearly so. Injury is the ordinary consequence of violation of one’s rights though injury does not always lead to damages which is why though the two terms are nearly the same they are not exactly so. Wherever there are damages there was an injury but ther is not always damages where there is injury. This principle of damnum sine injuria(q.v.) may be difficult for the lay person. However injury can encompassing abstract rights with no monetary value. Thus in cases of damnum sine injuria the injury is either de minimis, i.e. a trifling and too small to be remedied practically at the law or incommensurate. In such cases the plaintiff will have a satisfaction remedy of nominal damages - which are also called symbolic damages.

Personal | Verletzung körperlicher Integrität (Körperschaden)

Many torts, though not all, involve injuries to the body of a person. Such injuries are known as personal injuries.

Intent | Vorsatz

The autonomous individual – despite the fact of mutual dependance of people on others - is the centerpiece of the liberal notion of humanity. Thus the legal concept of intent, i.e. volition is central to an understanding of law in the liberal regimes. Intent is that state of

minde which is determined to do a certain thing.

Reinhard v. Lawrence Warehouse Co., 41 Cal. App.2d 741, 107 P.2d 501, 504.

State v. Gantt, 26 N.C. App. 554, 217 S.E.2d 3, 5.

Intentional infliction of emotional distress

The common law would not have recognized a claim for IIED as such, though such a claim could have been made using the general claim of action on the case or trespass on the case (q.v.) which are synonymous terms for the same action. Alternatively an IIED claim could have been – and as case, could be – made on a theory of assault if the victim were placed in fear of imminent bodily harm. This claim – where recognized – requires an intent on the part of the tort feasor, and an intent to harm the person. Thus there is less concern with fraudulent or exageratted claims that inheres in claims of negligent infliction of emotional distress (q.v.).

Even where this claim is recognized it is limited. E.g.,

“In our view, allowing emotional distress claims against a municipality for an official's negligent failure to transmit correct information to law enforcement authorities conducting criminal investigations in this case will have far-reaching effects in future cases.”

Lauer, Respondent, v. City of New York

95 N.Y.2d 95; 733 N.E.2d 184; 711 N.Y.S.2d 112; 2000 N.Y. LEXIS 907

Intentional Interference With Prospective Economic Advantage

This tort protects the relationship of trust and confidence between two persons as regards a third person. To prove a tort of intentional interference with prospective economic advantage the plaintiff must show:

1) An economic relationship between themselves and another person

2) A potential future benefit arising out of the relation

3) That defendant knew of the relationship

4) Action or intent to commit acts designed to disrupt the relationship

5) Damages caused by the defendant’s acts.

Buckaloo v. Johnson (1975) 14 Cal.3d 815, 827.

Essentially this tort remedies situation where a contract would have been formed but for the tortious interference of the defendant.

See Besicorp Ltd. v Alan R. Kahn, 2002 N.Y. App. Div. LEXIS 77, * ; 736 N.Y.S.2d 708; 2002 N.Y. App. Div. LEXIS 77

Intentional Interference with Contract

The tort of intentional interference with contract grew out of the tort of 'inducing breach of contract.'' (Seaman's Direct Buying Service Inc. v.Standard Oil Co. (1984) 36 Cal.3d 752, 765.) and is in fact one type thereof.

Essentially this tort remedies situation where a contract has been formed but is repudiated because of the tortious interference of the defendant.

See, e.g. Builders Corporation ofAmerica v. U.S. (N.D.Cal.'57 148 F.Supp. 482, 484, fn. 1, revd. on other grounds (9th Cir.'58) 259 F.2d 766, see also Pacific Gas & ElectricCo. v. Bear Stearns & Co.(1990) 50 Cal.3d 1118, 1126.)

'The actionable wrong lies in the inducement to break thecontract or to sever the relationship, not in the kind of contract or relationship so disrupted, whether it is written or oral, enforceable or notenforceable.' ' Pacific Gas & Electric Co. v. Bear Stearns & Co., supra, 50 Cal.3d at 1127.

The act of inducing breach of contract must be intentional. Thus an act which unintentionally leads to the breach of contract would not be grounds for a cause of action.

Intentional torts | Vorsätzliche Delikte

For every intentional tort there is a corresponding crime. Thus the tort of assault / the crime of assault, the tort of battery / the crime of battery etc. The intentional torts are those torts committed not through negligence or under a theory of strict liability but deliberately.

Intervening cause / Intervening Efficient Cause

Where a necessary cause to a tort occurs and where a superseeding sufficient cause intervenes that intervening cause will clearly be a tort. The question then is what of the underlying necessary cause? Will it also be a tort? If the necessary cause was not however sufficient then it will not be a legal cause and will not give rise to a cause of action. If on the other hand the necessary cause was in fact sufficient but did not occur due to the intervening cause liability for the earlier necessary cause will also lie.

For example imagine a person has been poisoned: because of the poison they will die. However before they die a second tort feasor shoots them to death. Clearly the second party is liable. The first party is also liable – strictly speaking the second cause is not an intervening cause.

Imagine the opposite case: defendant is drunk, and drives with a passanger. At a traffic light, the passenger gets out of the stopped car, and crosses the street against the signal – and is struck by another driver. Clearly the drunken driver is negligent and is also factually a cause, i.e. a necessary cause. However his action is not sufficient: once the passenger got out of the car and crossed the street the second car acts as an intervening cause.

Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131, 145 N.E. 806, 808.

Coyle v. Stopak, 86 N.W.2d 758, 768;

-J-

Joint and Several Liability | Mitverschuldung / Mitgefährdung / Gesamtschuldnerische Haftung

Where two plaintiffs contribute to the defendants injury and where either plaintiffs conduct would have led to the injury they are both liable as as joint-tortfeasors. The plaintiff can recover against either of them for the entire cost of their injury, though the joint tort-feasors may have causes of action inter se.

Joint tortfeasors:

See concurrent tortfeasor

Justification | Rechtsertigungsgrund

The act by which a party accused shows and maintains a good and legal reason in court, why he did the thing he is called upon to answer. Justifiable actions include self defence, or even defence of one’s house or property. Libel and slander can be justified by proving the truth of the assertion or because the defendant had the write to publish, for example before a government inquiry.

Justification must be specially pleaded. When proven however it is a completely bars the action.

Young Women's Christian Ass'n of Princeton, N.J. v. Kugler, D.C.N.J., 342 F.Supp. 1048, 1062.

-L-

Law

See : action at law

Legal Cause / Proximate Cause | Zurechnungsgrund

Causation in tort is divided between factual cause, i.e. those necessary causes but for which the tort would not have occurred, and proximate or legal cause, which concerns those causes which were not only necessary but sufficient (or sometimes efficient) and thus which will give rise to legal liability in tort.

See: causation, legal cause

Krauss v. Greenbarg, C.C.A.Pa., 237 F.2d 569, 572

Giles v. Moundridge Milling Co., 351 Mo. 568, 173 S.W.2d 745, 750.

Liability | Haftung

Liability is the legal obligation of a person to be held responsable for the injury to another whether that injury is contractual (breach of contract) or tortious (negligence, strict liability, intentional tort).

The consequence of a finding of a prima facie tort if unrefuted by some affirmative defence rise to legal liability in tort.

Mayfield v. First Nat. Bank of Chattanooga, Tenn., C.C.A.Tenn., 131 F.2d 1013, 1019.

Insurance, liability | Haftpflichtversicherung

See insurance

Extent of liability | Haftungsausfüllung

In German law the court distinguishes between a finding of negligence and a determination of the extent of damages. The determination of the extent of damages establishes what remedies the defendant has against the plaintiff, e.g. how much she will be compensated. The common law does this as well though is not as doctrinally strict in that the German determination of negligence and its extent corresponds also to another principle which does not appear to have an analogue in the common law that injury and damage be united in one person (Tatbestandprinzip). The common law reaches the same result albeit using a slightly different conceptual apparatus. In a case where there was no unity of injury and damages, that is where there is an injury but no damages (damnum sine injuria) the common law would award nominal damages.

Foundation of liability | Haftungsgrund

The foundation of liability is the determination of the negligence of the tort feasor and the injury arising therefrom to the plaintiff. It does not however concern the determination of the extent of liability (q.v.). In German law that is a separate inquiry, though in the common law the separation is not as distinct.

Joint and several liability | Gesamtschuldnerische Haftung

When several tort-feasors actions result in a tortious injury to the plaintiff and where each of their actions independantly would have led to the injury they shall be considered jointly and severally liable. The plaintiff may further choose to sue any or all of them either individually or as a group.

Insurance liability | Haftpflichtversicherung

See liability insurance

Proportional liability | Anteilshaftung

At common law the all-or-nothing rule (q.v.) required that a plaintiff have either a full recovery against defendant or none at all. This was seen to have led to substantive injustice in that somewhat negligent defendants would be able to avoid liability entirely – or be implicated for the entirety of the damages plaintiff suffered.

Proportional liability proposes to remedy the all-or-nothing rule by permitting a defendant to be held liable for damages only in proportion to their fault in creating the accident. Thus if the defendant were found only to have contributed to 20 percent of the tort (leaving aside for the moment the question of how that determination is made and whether a sufficient cause can only be partially responsible for a consequence) the defendant would be only liable for twenty percent of the damages. Thus proportional liability often arises in questions of joint and several liability.

Contributory negligence vs. comparative fault

Proportional liability also arises in cases of contributory negligence / comparative fault. At common law the rule of contributory negligence held that if the plaintiff were at all responsible for their misfortune – that is if the plaintiff’s own negligence contributed to the tort – be that contribution ever so small the plaintiff would have no recovery because of the all-or-nothing rule. This rule was also seen to be injust and in some jurisdictions has been replaced with the rule of comparative fault. According to the rule of comparative fault a finding of plaintiff’s negligence will reduce the award of damages to the plaintiff. Thus if plaintiff were ten per cent at fault for creating their injury then the damage award to the plaintiff would be reduced by ten percent.

In cases of products liability liability according to market share and epedemiological proof can be used to avoid the problems of causal indeterminicity – although they raise other problems of indeterminicity and may undermine legal certainty. In those cases proof is obtained via statistical evidence and thus the rationale of proportional liability appears again.

Market share liability

The rationale of proportional liability can arise first in cases where it is known that the plaintiff was injured by a product, but not known which manufacturer created the product. There a proportional market share liability may be applied, at least where it is known that all such products were in fact defective. Thus if plaintiff ingests a defective drug, and a certain corporation has fifteen percent of the market share then the defendant would be fifteen per cent liable for the damages arising out of their injury. See, e.g.

Hamilton v. Beretta U.S.A. Corp., 2001 N.Y. LEXIS 946, *; 96 N.Y.2d 222; 750 N.E.2d 1055; 727 N.Y.S.2d 7 (Market share liability where handgun manufacturer unknown due to negligence of manufacturer).

Epedemiological Proof

The second instance, epedemiological proof, arises where it is certain that the plaintiff was injured but uncertain what the cause was. For example a corporation negligently dumps toxic wastes. As a result the rate of cancer in that zone doubles. Plaintiff might be able to argue that the defendant should be fifty per cent liable for their cancer.

Law Philospher

Monday, October 21, 2013

ABSOLUTE LIABILITY / STRICT LIABILITY PPC and Tort paper 5 and 6 for LLB part I Punjab Universty

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