TORTS LAW:

What is Tort Law??

A tort, in common law jurisdictions, is a civil wrong which unfairly causes someone else to suffer
loss or harm resulting in legal liability for the person who commits the tortious act, called a
tortfeasor. (Un agravio, en las jurisdicciones de derecho comn, es un ilcito civil que causa injustamente a otra
persona a sufrir la prdida o el dao que resulte en responsabilidad legal para la persona que comete el acto ilcito,
llamada causante.)

Tort law defines what a legal injury is and, therefore, whether a person may be held liable for an
injury they have caused.

A tort is a civil wrong committed against someone, in which the injured party can sue for
damages. Basically, Tort law determines whether a person may be held legally responsible for
injury against another, and what type of compensation the injured party is entitled to.
The equivalent of tort in civil law jurisdictions is delict.

Three main types of torts
In order to claim damages there must be a breach in the duty of the defendant to the plaintiff,
which results in injury to the plaintiff. The three main types of torts are:
negligence, e.g., causing an accident by failing to obey traffic rules. Negligent torts occur when
the defendant's actions were unreasonably unsafe;
strict liability, (responsabilidad) e.g., liability for making and selling defective products. Strict
liability wrongs do not depend on the degree of carefulness by the defendant, but are
established when a particular action causes damage; and
intentional torts, e.g., intentionally hitting a person. Intentional torts are those wrongs which the
defendant knew or should have known would occur through their actions or inactions.

Tort Law in general
Legal injuries are not limited to physical injuries and may include emotional, economic, or
reputational injuries as well as violations of privacy, property, or constitutional rights.

Torts comprise such varied topics as auto accidents, false imprisonment, defamation, product
liability, copyright infringement, and environmental pollution (toxic torts).

While many torts are the result of negligence, tort law also recognizes intentional torts, where a
person has intentionally acted in a way that harms another, and in a few cases "strict liability"
which allows recovery without the need to demonstrate negligence.

Tort vs Criminal Law
Sometimes, depending on the nature of a tort, it may also be considered a crime. Intentional
torts occur when the defendant is aware that his actions will cause injury to another. In cases of
intentional torts, criminal prosecution may be brought against a defendant as well as civil action.
Tort law is different from criminal law in that:
(1) torts may result from negligent but not intentional or criminal actions; and
(2) tort lawsuits have a lower burden of proof such as preponderance of evidence
rather than beyond a reasonable doubt.
(3) also, a tort allows a person, usually the victim, to obtain a remedy that serves
their own purposes (for example by the payment of damages to a person injured in a car
accident, or the obtaining of injunctive relief to stop a person interfering with their business).
Criminal actions on the other hand are pursued not to obtain remedies to assist a person but to
remove their liberty on the state's behalf.

Objectives of Tort Law
The law of torts serves four objectives.
(1) First, it seeks to compensate victims for injuries suffered by the culpable action
or inaction of others.
(2) Second, it seeks to shift the cost of such injuries to the person or persons who
are legally responsible for inflicting them.
(3) Third, it seeks to discourage injurious, careless, and risky behavior in the
future.
(4) Fourth, it seeks to vindicate legal rights and interests that have been
compromised, diminished, or emasculated.

INTENTIONAL TORT
Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an
individual, and that do so.

It is any deliberate interference with a legally recognized interest, such as the rights to bodily
integrity, emotional tranquility, dominion over property, seclusion from public scrutiny, and
freedom from confinement or deception.

These interests are violated by the intentional torts of assault, Battery, trespass, False
Imprisonment, invasion of privacy, conversion, Misrepresentation, and Fraud.

An intentional tort requires an overt act, some form of intent, and causation. 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 rise to the level
of an intentional tort.

There are many specific types of intentional torts. These are some examples:
(1) Assault (tort): Acting intentionally and voluntarily causing the reasonable
apprehension of an immediate harmful or offensive contact.
(2) Battery (tort): Bringing about an unconsentful harmful or offensive contact with
a person or to something closely associated with them (such as an item of clothing). It differs
from assault in that it requires actual contact.
(3) False imprisonment: A person is intentionally confined without legal authority.
(4) Intentional infliction of emotional distress: Intentional conduct that results in
extreme emotional distress.


NEGLIGENT TORT
Negligence is a failure to exercise reasonable care to avoid injuring others.
It is distinguishable from intentional torts in that negligence DOES NOT require the intent to
commit a wrongful action; instead, the wrongful action itself is sufficient to constitute negligence.
What makes misconduct negligence is that:
(1) the behavior was not reasonably careful; and
(2) someone was injured as a result of this unreasonable carelessness.

There are four elements to Negligent tort law:
duty: the plaintiff must establish that the defendant was under a legal duty to act in a particular
fashion;

breach of the duty: the plaintiff must demonstrate that the defendant breached this duty by
failing to conform his or her behavior accordingly; A person who engages in activities that pose
an unreasonable risk toward others and their property that actually results in harm, breaches
their duty of reasonable care.

causation: the plaintiff must prove that he suffered injury or loss as a direct result of the
defendant's breach. The basic test is to ask whether the injury would have occurred but for, or
without, the accused party's breach of the duty owed to the injured party; and

injury: the plaintiff must prove that he suffered injury or loss. The requirement of pecuniary loss
can be shown in a number of ways. A plaintiff who is physically injured by allegedly negligent
conduct may show that he had to pay a medical bill. If his property is damaged, he could show
the income lost because he could not use it, the cost to repair it, although he could only recover
for one of these things. The damage may be physical, purely economic, both physical and
economic (loss of earnings following a personal injury).

STRICT LIABILITY TORT
In some cases tort law imposes liability on defendants who are neither negligent nor guilty of
intentional wrongdoing.

Known as Strict Liability, or liability without fault, this branch of torts seeks to regulate those
activities that are useful and necessary but that create abnormally dangerous risks to society.


These activities include blasting, transporting hazardous materials, storing dangerous
substances (for example, the storage of a large amount of natural gas in a populated area, the
storage of explosives, and the conducting of blasting operations which result in damage to
adjoining property), and keeping certain wild animals in captivity. Individuals in possession of
wild and dangerous animals are also subject to absolute liability for injuries caused by those
animals.

Persons who engage in ultrahazardous activities may be morally blameless because no
amount of care or diligence can make their activities safe for society.
However, such persons will nonetheless be held legally responsible for harm that results from
their activities as a means of shifting the costs of injury from potential victims to tortfeasors. As a
matter of social policy, then, individuals and entities that engage in abnormally dangerous
activities for profit must be willing to ensure the safety of others as a price of doing business.

Absolute liability is different from intentional tort in that intent to commit an absolute liability tort is
irrelevant. Likewise, strict liability is distiguishable from negligence, because the torfeasor is
responsible under absolute liability regardless how careful he or she might have been.

SPECIFIC TORTS
Property torts
Trespass to land: Committed when an individual intentionally enters the land of another
without lawful excuse. It is actionable per se, and thus the party whose land was entered may
sue even if no actual harm is done.
Conversion (law): An intentional tort to personal property where the defendant's willful
interference with the chattel deprives plaintiff of the possession of the same.
Detinue: An action for the wrongful detention of goods, initiated by an individual who claims to
have a greater right to their immediate possession than the current possessor or holder.
Replevin: (accion reivindicatoria) Signifies the recovery by a person of goods unlawfully taken
out of his or her possession by a legal process.
Trover: A form of lawsuit for recovery of damages for wrongful taking of personal property.

Economic torts
Business or economic torts typically involve commercial transactions, and include tortious
interference with trade or contract, fraud, injurious falsehood, and negligent misrepresentation.
Fraud: A deception made for personal gain.
Tortious interference: One person intentionally damages the plaintiff's contractual or other
business relationships.

Nuisance
Denial of quiet enjoyment to owners of real property. It is traditionally used to describe an activity
which is harmful or annoying to others such as indecent conduct or a rubbish heap. Nuisances
either affect private individuals (private nuisance) or the general public (public nuisance).

Defamation
The communication of a statement that makes a false claim, expressively stated or implied to be
factual, that may harm the reputation of an entity. It has two varieties, slander and libel. Slander
is spoken defamation and libel is printed or broadcast defamation. The two otherwise share the
same features: making a factual assertion for which evidence does not exist.





DEFENSES
Consent and warning
Typically, a victim cannot hold another liable if the victim has implicitly or explicitly consented to
engage in a risky activity. In many cases, those engaging in risky activities will be asked to sign a
waiver releasing another party from liability.
Self-Defense
Self-Defense, defense of others and defense of property are used as defenses to assault,
battery and false imprisonment and can be used if the party claiming the defense responded in
a reasonable manner and in a manner proportionate to the threat presented.
Necessity
Necessity is the privilege to use, and damage if necessary, a persons property in order to
prevent greater harm to a person or the public as a whole. The defense of necessity is typically
invoked only against the intentional torts of Trespass to chattels, trespass to land, or conversion
(law).
Comparative or contributory negligence
If the victim has contributed to causing their own harm through negligent or irresponsible actions,
the damages may be reduced or eliminated entirely. Public necessity and private necessity.
This defense would be used in trespass cases.
Illegality
If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may
extinguish or reduce the defendant's liability. The legal maxim ex turpi causa non oritur actio,
Latin for "no right of action arises from a despicable cause".
Immunities
Certain individuals and entities are granted Immunity from both damage awards and
assessments of liability in tort. An immunity is a defense to a legal action where public policy
demands special protection for an entity or a class of persons participating in a particular field or
activity.
REMEDIES
The main remedy against tortious loss is compensation in damages or money.

There are two types of damages claimed in tort law:
Compensatory;

punitive.

Personal injury tort victims must normally recover all their damagespast, present, and future
during a single lawsuit. Damages may be recovered for physical, psychological, and emotional
injury. Specifically, these injuries may include permanent disability, pain and suffering,
disfigurement, humiliation, embarrassment, distress, impairment of earning capacity, lost wages
or profits, medical costs, and out-of-pocket expenses. Courts typically rely on Expert
Testimony to translate such losses into dollar figures.

Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant's
losses (in cases involving physical or mental injury the amount awarded also compensates for
pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff back
in the position he or she was before Defendant's negligent act. Anything more would unlawfully
permit a plaintiff to profit from the tort.
TYPES OF DAMAGES
Special damages - quantifiable dollar losses suffered from the date of defendant's negligent act
(the tort) up to a specified time (proven at trial). Special damage examples include lost wages,
medical bills, and damage to property such as one's car.

General damages - these are damages that are not quantified in monetary terms (e.g., there's
no invoice or receipt as there would be to prove special damages). A general damage example
is an amount for the pain and suffering one experiences from a car collision. Lastly, where the
plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses,
the court or jury may award nominal damages.

Punitive damages - Punitive damages are exceptional damages offered to the plaintiff when
the injuries caused by the defendant were particularly heinous in nature, and are often awarded
in intentional torts. The purpose of punitive damages in tort law is to punish the defendant for
wrongdoing, deter future wrongdoing, and reward the plaintiff for pain and suffering.

ES NECESARIO ANALIZAR EN CADA CASO LO SIGUIENTE: CLARIFICATION:

Regarding the daycare example, if a crime was committed, it would be prosecuted by
the State. That doesnt exclude the fact that the parents of the child whos leg was
broken by falling down the stairs because she left the classroom unattended because
they left the door open can sue for negligent tort

Each case or incident must be evaluated based on its own facts,
circumstances, and merits. The four basic elements are as follows:
Duty. Day Care Center has the duty to provide reasonable and timely care
and supervision of the children enrolled in the program.

Breach of Duty. As the second element of a case, a Day Care Center
breaches a duty when it fails to take appropriate action or acts (through its
employees, staff, and agents) in a negligent or careless manner.

Causation. The third element known as Causation is often times the most
difficult element to prove. In order to establish a proper case or claim for a
viable personal injury claim against a Day Care Center, it must be shown the
breach of duty was the actual cause or a substantial cause of the damages.

Damages. This element refers to the injuries caused by the Breach of Duty.
Injuries can be in the form of physical OR emotional injuries.



Two Boys Strangled To Death In Their Sleep By
Escaped Python
We often discuss the strict liability rule governing wild animals in tort law. This
morning Canada is dealing with a tragic and bizarre case in which two young
boys aged five and seven were killed by a python that escaped a pet store
and slithered through their ventilation system into their room. Reptile Ocean
owner Jean-Claude Savoie lives above the store and was hosting the two boys
for a sleepover with his own son who was unhurt.
Savoie found the boys dead in the morning. His own son was unharmed in an
adjoining room. The snake is an African rock python and kills by constricting its
victims.
It appears to have escaped it enclosure during the night and found the ventilation
system. It then proceeded to strangle the boys to death.
In 2009, the province of New Brunswick relaxed rules to allow a wider variety of
snakes, lizards and other exotic pets to be sold and kept.
Reptile Oceans Facebook page
was shutdown after someone posted a statement criticizing people who were
leaving angry messages and saying that commenters should be ashamed of
themselves for blaming the store.
In the United States, the first issue would be the classification of the snake as
either wild or domesticated. If considered wild (which I would presume), the store
would be strictly liable.
If it were considered domesticated (perhaps due to a showing of animus
revertendi or habit of return), the store would still be likely liable but would be
subject to a negligence standard. The escape of the snake suggests obvious
negligence. The question would be whether the use of the ventilation system was
so unforeseeable as to cut off liability as a matter of proximate causation. I would
think it was clearly foreseeable that a snake would slither to a cool dark surface
like a ventilation system.
I can only imagine what these parents and the owner are experiencing this week
in the grief that follows such a tragedy. The cause of death is truly nightmarish.
The police are conducting a criminal investigation, presumably looking at a form
of criminal negligence or manslaughter that does not require intent. There could
also be charges based on the violation of public laws governing public safety or
animal maintenance. Civil liability could also follow. None of this will of course
bring anything close to solace for the parents, but many people want answers on
how such a tragedy could occur.


Breast Implant Litigation
Silicone breast implants were developed in the 1960s. They have been used for breast
reconstruction (about 15 percent of implant procedures, as estimated by the U.S. Food
and Drug Administration) and breast enhancement (about 85 percent of implant
procedures, as estimated by the FDA). Dow Corning Corporation was the primary
supplier of silicone breast implants. By the mid-1990s, approximately two million
women had received breast implants. Over time, some silicone breast implants leaked or
ruptured. Thousands of implant recipients began experiencing a variety of symptoms
(joint and muscle pain, hair loss, rashes, memory loss) and even serious diseases of the
immune system. One such disease is systemic lupus erythematosus, a chronic
inflammatory disease of the connective tissue. The FDA has since banned the use of
silicone breast implants for cosmetic purposes. Saline-filled implants are still approved
for breast reconstruction and enhancement.
Class Action Lawsuit
In the early 1990s, a class action lawsuit was filed against Dow Corning and other
manufacturers on behalf of women who claimed that implant leaks caused various
ailments. The complaint alleged strict liability (liability without fault), negligence (lack
of due care), failure to furnish adequate warnings and/or instructions, and breach of
express and implied warranties (promises about the performance of a product). Dow
Corning argued there was no scientific proof that silicone caused immune system
diseases. Dow Corning and the other manufacturers were found liable in this landmark
breast implant lawsuit. The manufacturers agreed to a $4.25 billion settlement in 1994 to
compensate women for their silicone implant-related injuries. The litigation ultimately
led Dow Corning to declare bankruptcy in 1995. The company is under reorganization
and in 1997 made a $2.4 billion settlement offer. The other manufacturers agreed to a
new settlement.
Breast Implant Lawsuits
When a company produces a dangerous or defective product that injures an individual, the
injured person may sue the company in a products-liability tort action, demanding compensation
for the injuries. To prevail in a products-liability action, the plaintiff must demonstrate that the
injury-causing product was defective, that the defect existed at the time the product left the
control of the defendant, and that such defect was the proximate cause of the plaintiff's injury. If
many individuals have been injured by the same product, the court may permit the filing of
a Class Action lawsuit, in which a small number of plaintiffs represent the entire group of injured
victims.
One of the more controversial class actions involved the silicone breast-implant litigation.
Notwithstanding a class totaling more than 400,000 plaintiffs, a settlement that offered more than
$3 billion in compensation for their alleged injuries, and a federal government ban on the product,
no evidence was ever provided that conclusively linked silicone breast implants with any form of
serious disease. In fact, following the settlement at least two scientific studies affirmatively
concluded that no such link exists. In the wake of those studies, manufacturers have sought
government approval to resume selling silicone breast implants to the public.
In 1962 Dow Corning became the first company to manufacture and market silicone breast
implants. The implants consisted of a rubbery silicone envelope containing silicone gel. Plastic
surgeons soon discovered that a certain (and as yet undetermined) percentage of implants
rupture on their own, either because of trauma to the breast or because the implant simply tears.
In many cases, the gel stays either in the implants or in the immediate vicinity. In rare cases, the
gel may migrate through the body. Moreover, the implants themselves are permeable, and minute
amounts of silicone gel can seep through the implants and remain in nearby tissue or migrate
throughout the body.
For many years, breast implants were essentially unregulated by the government. The Food and
Drug Administration (FDA) did not have jurisdiction over medical devices, including breast
implants, until the 1976 Medical Devices Amendment to the Food, Drug and Cosmetic Act (MDA)
became law. The MDA "grandfathered-in" existing devices, such as breast implants, allowing
them to remain on the market until the FDA could classify and regulate them. In 1982 the FDA
proposed classifying silicone-gel breast implants as Class III devices, the most stringently
regulated category. The FDA expressed concern about the scar tissue that forms around the
implant, about potential long-term toxic effects of silicone that might leak from the implants, and
about possible health effects from the silicone polymers from which the implant shells were made.
That same year Maria Stern filed the first silicone-breast-implant-related Product Liability suit
against Dow Corning, Inc., after her implants ruptured. Testifying before a jury sitting in the U.S.
District Court for the Northern District of California, Stern said that she suffered from chronic
fatigue and joint pains before and after the implants were removed. Although her doctors
speculated that Stern's problems had been caused by the silicone migrating throughout her body,
they offered no valid scientific proof of causation. However, Stern did demonstrate that the
company had acted irresponsibly by failing to conduct any research into the possible ill effects of
silicone on the human body despite evidence that Dow Corning knew that implants could leak
and rupture. A jury found for the plaintiff and awarded Stern $200,000 in damages. The jury also
awarded her $1.2 million in Punitive Damages. After the trial judge upheld the awards, the case
was settled before appeal for an undisclosed sum, and the record was sealed.
The media did not immediately pick up on the Stern settlement or the smattering of similar
lawsuits that were pending in state and federal courts around the country. After several relatively
uneventful years following a series FDA hearings in the late 1980s, however, NBC aired an
episode of Face to Face with Connie Chung which focused on the dangers of breast implants.
The December 1990 show frightened and outraged thousands of implant recipients. Chung
referred to silicone gel as "an ooze of slimy gelatin that could be poisoning women." She
interviewed several women who blamed implants for causing their auto-immune diseases, but
Chung never questioned the presumed link. Chung concluded the segment by showing viewers
pictures of Sybil Goldrich, whose chest had been disfigured by operations to remove her
implants.
On July 9, 1991, a deadline expired for implant manufacturers to prove the safety of their product
to the FDA, and no manufacturer offered any convincing proof on the matter. A year later the FDA
ordered that silicone breast implants be removed from the market. Thereafter, the number of
breast-implant lawsuits filed against manufacturers rose dramatically. By 1992 plaintiffs had filed
3,558 individual lawsuits against Dow Corning alone. In June 1992, the federal Judicial Panel on
Multidistrict Litigation certified a multi-district class-action lawsuit against the major implant
manufacturers, including Dow Corning, Bristol-Myers Squibb, Baxter International, and Minnesota
Mining & Manufacturing Co.
In September 1993 the parties tentatively agreed to settle the class-action products liability
lawsuit for $4.75 billion. But settlement ultimately collapsed after 440,000 women registered for
the settlement, forcing Dow Corning, the largest contributor to the settlement, to file
for Bankruptcy in 1995. On November 30, 1998, U.S. Bankruptcy Judge Arthur Spector approved
Dow Corning's $4.5 billion plan to emerge from bankruptcy, which included $3.2 billion to settle
implant claims with more than 170,000 women. Eventually, the other implant manufacturers
entered similar settlement agreements with most of the remaining plaintiffs. More than 90 percent
of the eligible class-action plaintiffs accepted the defendants' settlement offers. The remaining
plaintiffs opted-out of the class settlement, which allowed them to sue the defendants individually.
A little more than a year after the class action was settled, a scientific panel appointed by the
court overseeing the settlement released the results of its breast-implant study, finding that there
was no sufficient scientific basis to link silicone implants to cancer, connective tissue diseases,
immune system dysfunctions, or any other disease. On June 21, 1999, the Institute of Medicine of
the National Academy of Sciences issued a congressionally funded report that reached the same
conclusion.
In March of 2003 two California-based companies announced their desire to re-introduce silicone
breast implants into the stream of commerce, and the FDA agreed to hold safety hearings and
reconsider its ban on the product. The potential return of silicone gel-filled implants came at a
time when more women were looking to increase their breast size: the American Society of
Plastic Surgeons reported more than 206,300 breast augmentations in 2001, up from about
32,600 in 1992.