1

INTRODUCTION TO TORTS

Maj Sohail Malik 2 May 2015

 2

THE LAW OF TORT

Maj Sohail Malik 2 May 2015

 Definition and Purpose of Tort Law
3

In the construction industry, disputes often result in litigation or

some form of alternative dispute resolution
Claims against contractors may seek recovery for injury caused by
alleged negligent performance
Contractors should be prepared to limit their exposure to such claims

Maj Sohail Malik 2 May 2015

 4

Maj Sohail Malik 2 May 2015

 Definition and Purpose of Tort Law
5

A tort is a civil wrong other than a breach of contract

Tort law defines what constitutes a legal injury and establishes the
circumstances under which one person may be held responsible (i.e.,
liable) for anothers injury

Maj Sohail Malik 2 May 2015

Difference Between Liability In Contract Law And Tort Law

Tort Contract
Duty owed to persons generally Duty owed to other party/ies to
contract

Duty imposed by law Duty accepted voluntarily

Damages are backward-looking Damages are forward-looking
Primarily to protect non-economic Primarily to protect economic
interests interests

Maj Sohail Malik 6 2 May 2015

 Types of Torts
7

There are a variety of torts, which can broadly be broken into the
following three categories:

Negligent torts

Intentional torts

Strict liability torts

Maj Sohail Malik 2 May 2015

 Types of Torts
8

There are a variety of torts, which can broadly be broken into the
following three categories:
- Negligent torts

Negligent torts, as their name suggests, are torts that are caused
by the negligence of the tortfeasor, or person who commits the tort.
Covers the full scope of human activity (e.g., product liability, slip
and fall, negligent misrepresentation, professional negligence,
etc.)

Maj Sohail Malik 2 May 2015

 Types of Torts
9
There are a variety of torts, which can broadly be broken into the following
three categories:
Intentional torts
Intentional torts, also as their name suggests, are torts caused
intentionally by the tortfeasor. Intentional torts have several
subcategories:
Torts against the person include assault, battery, false imprisonment,
intentional infliction of emotional distress, and fraud, although the latter
is also an economic tort.
Property torts involve any intentional interference with the property rights
of the claimant (plaintiff). Those commonly recognized include trespass
to land, trespass to chattels (personal property), and conversion.
Maj Sohail Malik 2 May 2015
 Types of Torts

Intentional torts
A tort is considered a civil or private wrong rather than a
criminal wrong, but sometimes a tort is also a crime!

For example, an assault is both a tort and a crime because it hurts the
individual and poses a threat to all members of society

Slander (False allegation) is a tort but NOT a crime because it only

hurts an individual
 Types of Torts
11

There are a variety of torts, which can broadly be broken into the
following three categories:
Intentional torts
An intentional tort requires an overt (obvious/ unconcealed) act,
some form of intent, and causation.
In most cases, transferred intent, which occurs when the defendant
intends to injure an individual but actually ends up injuring
another individual, will satisfy the intent requirement. Causation
can be satisfied as long as the defendant was a substantial factor in
causing the harm.

Maj Sohail Malik 2 May 2015

 Types of Torts
12

There are a variety of torts, which can broadly be broken into the
following three categories:

Strict liability torts

Strict liability torts are torts where the law has determined that
some activities are so dangerous that an individual engaging in
those activities is liable for damages regardless of intent or
negligence resulting in harm. A common example is blasting with
dynamite.

Maj Sohail Malik 2 May 2015

 Elements of a Negligence Claim
13

There are four basic elements of a tort:

1) Duty-Duty of care owed by defendant to the plaintiff according to the proximity

(i.e., neighbour) principle

2) Breach-Breach of the duty of care by a failure to meet the required standard

of care, which is that of the reasonable person in the circumstances

3) Causation-Causal link between the defendants act or omission and the

plaintiffs loss (i.e., damages)

4) Damages-Damages were reasonably foreseeable at the time of the breach

Maj Sohail Malik 2 May 2015

 Negligent Torts: Duty
14

Everyone has a duty to exercise due care all of the time.

What is due care?

Due care is the amount of care that a reasonable person would exercise
under the circumstances.

What is a reasonable person?

A reasonable person is not any real person or even the average person, but
an imaginary prudent (acting with or showing care and thought for the
future) person who takes the precautions necessary to avoid harming
another person or their property.

Maj Sohail Malik 2 May 2015

 The Duty and Standard of Care Owed by Professionals
15

Professionals have a duty to exercise the skill, care and diligence that
may reasonably be expected of a person (i.e., a professional person
in a particular discipline) of ordinary competence, measured by the
professional standards of the time

Maj Sohail Malik 2 May 2015

 Negligent Torts: Duty
16

Can you think of examples of due care that each of the following
people must exercise?:
1. A lifeguard at a municipal pool.
2. A lumberjack (a person who fells trees) felling a tree.
3. An owner of an aggressive dog.
4. A high school football coach.

Maj Sohail Malik 2 May 2015

 Negligent Torts: Breach
17

Breach is the simplest of the four elements.

Once you determine the standard of care, you ask, did the defendant
follow that standard of care?
For example, if the standard of care requires the owner of an
aggressive dog to keep the dog on a leash and the owner does not do
so s/he has breached the duty of care.

Maj Sohail Malik 2 May 2015

 Negligent Torts: Causation
18

There are two types of causation:

Causationin fact; and

Proximate cause (coming or happening immediately before or after
something in a way that shows a very close and direct relationship)

Maj Sohail Malik 2 May 2015

 Negligent Torts: Causation
19

Causation in fact, also known as but-for causation, is pretty simple.

The question is, but for the defendants actions would the injury have
occurred?

Example: A hits B in the shin with a golf club. Bs shin would not have
been injured if A had not him in the shin with a golf club.

Maj Sohail Malik 2 May 2015

 Proximate Cause
20

Proximate cause is a little more difficult.

Ultimately, it is more of a policy question than a legal question. The
issue is where the law wants to cut off liability for a negligent actor.
Several theories exist regarding proximate cause:
1) Foreseeability
2) Direct Causation
3) The Danger Zone

Maj Sohail Malik 2 May 2015

 Negligence and Economic Harm
21

Negligence can involve compensable harm that is purely economic in

nature

This is often, though not exclusively, the situation in cases involving

negligent misrepresentation

Maj Sohail Malik 2 May 2015

 Elements of Negligent Misrepresentation
22

Duty of care exists based on a special relationship (e.g., professional person and
lay person who may reasonably rely on the professional persons professional
expertise)

Professional person makes representation that is untrue, inaccurate or

misleading

The representation is made negligently

Person receiving the representation relies on it in a reasonable manner

The reliance is detrimental and damages result

Maj Sohail Malik 2 May 2015

 Negligent Torts: Causation: Hypo
23

This is Ken Griffey, Jr.

Ken Griffey, Jr. likes to practice his swing in his living room.
Unfortunately, this sometimes leads to disaster

Maj Sohail Malik 2 May 2015

 Negligent Torts: Causation: Hypo 1
24

One day, while practicing his swing in his living room, Ken loses his grip
on the bat. The bat flies into the sitting room and hits his wifes friend
in the head, causing minor injuries.
Q1: Is there causation in fact?

Q2: In there proximate causation?

Maj Sohail Malik 2 May 2015

 Negligent Torts: Causation: Hypo 2
25

Ken did not learn his lesson when he injured his wifes friend. Once again,
during a practice session, Ken loses his grip. This time the bat flies
through a window and hits the ladder his roofer is using to climb onto
his roof. The roofer falls and breaks both his arms.
Q1: Is there causation in fact?

Q2: In there proximate causation?

Maj Sohail Malik 2 May 2015

 Negligent Torts: Causation: Hypo 3
26

Ken, Ken, Ken. He keeps practicing, and keeps losing his grip. This time the
bat flies into his neighbors yard. The bat hits his neighbor in the head just
as he is squirting lighter fluid onto his grill. He squirts too much, which
causes an explosion. In addition to his head injuries, he suffers burns from
the explosion and there is some fire damage to his house.
Q1: Is there causation in fact for each injury?
Q2: In there proximate causation?
Q3: What if the fire had burned down the neighbors house? Several
neighbors houses?

Maj Sohail Malik 2 May 2015

 Negligent Torts: Causation: Hypo 4
27

For some unknown reason, Ken is still practicing his swing in his house and he has
a new neighbor, Eric, that loves to BBQ. Its a perfect storm. And sure enough,
Ken launches his bat through his window into his neighbors yard. The bat hits
the BBQing neighbor, setting off another BBQ explosion. This time it kills the
neighbor, and the neighbors wife is severely injured in the ensuing fire. As she is
being wheeled to the ambulance she is struck by lightning.
Q1: Is there causation in fact for each injury?
Q2: Is there proximate cause for each injury?
Q3: Could Jane, another neighbor, sue Ken because she can no longer sell the new
gas grill she handmade for Eric to Eric because Eric is dead?

Maj Sohail Malik 2 May 2015

 Negligent Torts: Damages
28

The basic idea of damages is fairly simple: All injuries can be reduced
to a monetary amount.

The real difficulty comes in calculating damages. For example, it is

pretty easy to figure out how much a totaled car is worth, but its not
so easy to figure out how much eyesight is worth.

Maj Sohail Malik 2 May 2015

 Negligent Torts: Damages: Hypo
29

Betty and Derek are walking to school. Steven is driving down the street
talking to his friends in the backseat. One of Stevens friends screams
Look out! Steven reacts by turning the wheel of his car, which jumps
the curb and pins Bettys arm to the wall crushing it. What remains of
Bettys arm needs to be surgically remove.
Q1: How much is Bettys arm worth?
Q2: Does the answer change if Betty was a concert pianist?
Q3: What if Betty simply wanted to be a concert pianist, but wasnt one
yet?

Maj Sohail Malik 2 May 2015

 Objective of Damages for Commission of Tort
30

To restore the plaintiff to the position he or she would have been in if the
tort had not been committed

Maj Sohail Malik 2 May 2015

 Defenses to Negligence Suits
31

Even where the plaintiff has proven all of the elements of a negligent
tort, the defendant may be found not to be liable or the defendants
liability may be reduced based on certain defenses. These defenses
include:
1. Contributory Negligence
2. Comparative Negligence
3. Consent
4. Illegality

Maj Sohail Malik 2 May 2015

 Defenses to Negligence Suits
32

As you know, it is rare that an accident is caused solely because of one

persons actions

If the plaintiff is partly at fault for his or her injuries, what can the defendant
do to reduce his or her liability?
Contributory negligence defense: If the plaintiffs own negligence
contributed to the harm suffered, the plaintiff cannot collect anything from
the defendant
Comparative negligence defense: Plaintiffs recovery from the defendant
is reduced by the percentage that the plaintiffs own negligence
contributed to the injury

Maj Sohail Malik 2 May 2015

 Damages
33

There are two aspects of damages that must be considered: actual, physical
harm and the monetary values ascribed to those harms

The first aspect is straightforward show that you suffered actual injury (e.g.
broken arm, burned down house, etc.)
Once you prove the actual, physical harm, the second aspect of damages
comes into play: Money claimed by, or ordered to be paid to, a person as
compensation for loss or injury
The law tries to restore the plaintiff to her pre-injury condition using money

Maj Sohail Malik 2 May 2015

 What Can Plaintiffs Recover?
34

What do you think a plaintiff could recover if he or she proves the

defendant acted negligently and caused his or her harm?
Categories:
Direct loss value of the loss of certain bodily functions (e.g. loss
of a leg)
Economic loss out-of-pocket costs resulting from the injury (e.g.
medical bills, lost wages, reduced earnings capacity, property
damage)
Pain and suffering value of the mental anguish plaintiff has
suffered and will continue to suffer
There are others, but these are the main categories
Maj Sohail Malik 2 May 2015
 Comparative Negligence in WA
35

Washington is known as a pure comparative negligence jurisdiction

What does this mean?

Basically, even if the plaintiff was 90% responsible for her own
injuries, she may still recover 10% of her damages from the
defendant
Example: Scratchy sues Itchy for $100,000 for running him over
as he crossed the street. The jury determines that Scratchy was
30% responsible for his own injuries because he was wearing all
black and listening to loud music. Scratchy will recover $70,000
from Itchy
Maj Sohail Malik 2 May 2015
 Damage Awards for Commission of Tort
36

General damages compensation for non-monetary loss or harm

suffered as a result of the commission of the tort that was foreseeable
when the tort was committed (e.g., pain and suffering, mental distress or
damage to reputation)
Special damages compensation for the quantifiable monetary losses
suffered by the plaintiff that include direct losses (such as amounts the
plaintiff had to spend to try to mitigate problems), consequential or
economic losses (such as lost profits in a business), and punitive
damages, where applicable
Punitive damages awarded to punish certain types of behaviour (e.g.,
fraud or bad faith)
Plaintiffs have a duty to mitigate their damages

Maj Sohail Malik 2 May 2015

 Vicarious Liability
37

Vicarious liability is a form of strict, secondary liability that arises under

the common law doctrine of agency respondeat superior the
responsibility of the superior for the acts of their subordinate, or, in a
broader sense, the responsibility of any third party that had the "right,
ability or duty to control" the activities of a violator.

Maj Sohail Malik 2 May 2015

 Vicarious Liability
38

In certain cases, one person can be liable for the harm cause by another

One example relevant to professional liability is an employers liability

for the actions or omissions of its employees

Maj Sohail Malik 2 May 2015

 Summary
39

The information covered today is just the tip of the iceberg

There is much more to learn:

More defenses
How to prove the monetary value of a claim to the jury
Multiple causes of an injury
Complex scenarios involving multiple plaintiffs and multiple defendants

This lesson provides a good foundation so that you can evaluate your
conduct in society and the conduct of others

Maj Sohail Malik 2 May 2015

 Assignment 4
40

Research the cases of tort law in construction projects and write down

summary of 3 cases (2-3 pages)

Maj Sohail Malik 2 May 2015