Intentional Torts, Negligence, Nuisance Essay Example for Free

Intentional Torts, Negligence, Nuisance essayA civil wrong is a legal stigma resulting from a violation of a legal a veracious which arises independent of cut off and for which restitution may be had in a civil exertion for prices. Gener everyy, in that respect ar three engagings of civil wrongs. They are first, those which are based on fault or failure second, intended torts and tertiary, those where the element of negligence or captive does not enter as an essential element. The first kind refers to the fault or negligence of a individual who, by his act or omission, causes damage to an other(a), to whom he is not bound by all contractual relation. In some civil law jurisdictions, this tort is popularly known as quasi-delict which is of French origin comprehending a common law concept of negligence. In achieves based on quasi-delicts, to recover damages, an injured party essential exhibit the fault or negligence of the defendant, the damage suffered and t he relation of cause and effect between the defendants negligence and the damage or injury he has suffered.The immediate cause which produces the injury must not be intermitted by any intervening cause. In cases where both parties are negligent and proximate cause cannot be directly attributed to each party, the humanitarian doctrine provides that the party who had the last chance to avoid the accident but did not do so, shall be held accountable for the consequences of the act.Intentional torts are acts causing injury to soulfulnesss or property committed with intent to cause damage to another. This is covered chthonian provisions on human relations. An example of this type is exceed to land, whether such(prenominal) violation of property right causes improvement or damage to the land. This is an actual invasion to other somebodys possession without go for.A good example of the third kind is nuisance. This is sometimes classified as intentional tort. Nuisance is any act, omis sion, establishment, business, condition of property or anything else which injures or endangers the health or safety of others or annoys or offends the senses or shocks, defies or disregards decency or morality or obstructs or interferes with the idle passage of any mankind highway or street, or any body of water or hinders or impairs the use of property.As to injurious effects, nuisance may be classified as public nuisance or private nuisance. A public nuisance affects a community or neck of the woods or any considerable number of individuals, while a private nuisance affects completely a someone or small number of persons. The remedies against nuisance are abatement brought by an agency of the political sympathies and damage suit or relief by injunction by private individuals whose enjoyment of a right has been impaired.In tort cases, the doctrine of res ipsa loquitor is applied. The doctrine requires that the accident must be of a kind that does not ordinarily happen with out defendants negligence. It affords reasonable evidence, in the absence of news report by the defendant that the accident arose from want of care. The accident must have been ca utilise by an agency or instrumentality deep down the exclusive control of the defendant and not due to any voluntary body process or contribution on the part of the plaintiff.Strict Liability and Product Liability Strict liability in tort is a concept where the plaintiff need not prove the negligence of the defendant in order to recover damages caused by defective increases. . Consensual contract is not unavoidable to prove liability of the defendant. Strict liability is enforced against the manufacturers who are responsible for committing the products in the market. Liability rests on the protection of the consumers with the aim of securing that the costs of victimizes brought about by defective products are donned by the manufacturers.In product liability case, the burden of proof is shifted from the plaintiff to the defendant. The plaintiff must only prove that he suffered injuries by the defective product and that utter defect already exists at the time the goods departed from the manufacturer or retailer as distinguished from recovery due to negligence, where the plaintiff has yet to prove that the defect was caused by defendants failure to act with prudence.Strict liability applies only where there is physical harm or damage to other property. economicalal loss such as consequential loss of income or cost of repair/replacement brought by defective product is recoverable under the Uniform commercialized Code. If a product exists different from what is intended by the manufacturer or differs from the same manufacturers product, it is said to be defective. only, the manufacturer is not liable if the injury is caused by unanticipated use or misuse of the product.Wrongful Death and Survival Tort Action When through negligence a person is kil take, illicit death happen s. Damages may be recovered by the decedents survivors or beneficiaries. Survivors need not prove the exact amount of damages which fall under two classes economic damages and n superstarconomic damages. Economic damages include funeral and burial expenses. If the survivors are receiving financial support, it has to be included, computed based on the life expectancy of the decedent.The value of household services that could have been provided by the decedent to his beneficiaries had he survived shall likewise form part of the economic damages. In addition, gifts and other benefits the decedent could have contributed to the survivors shall withal be included. Economic benefits shall be debased to current value. In deciding for the noneconomic benefits which includes loss and sufferings, no fixed standard exists. In survival action for tort, it is the e enounce of the decedent that can championship for lost earnings, punitive damages and health check expenses incurred by the dec eased sooner to his death. It means that, it is the successor-in-interest that has the right to file such postulate, subject to testate or intestate proceedings under a probate court.Both wrongful death and survival tort action are subject to prescriptive periods under the Statute of Limitations. Wrongful death has to be claimed within two years from the death of the decedent. In survival action, the time limit for the action commences from the date the claim actually passed to the deceased. In deciding these cases, the scale of justice is slightly tilted in favor of the plaintiff where only clear and convincing evidence is required.Immunity, Release and Contribution, Indemnity State political subdivisions such as hospitals enjoy immunity from suits for negligence or intentional torts under state law. However, under federal pre-emption law, they may be sued under the EMTALA or Emergency Medical Treatment and Active Labor Act. Regarding state immunity statute, where a conflict ari ses between state law and federal law, state law must yield under the supremacy clause of the U.S. Constitution. at a lower place the Communications Decency Act of l996, providers or users of interactive calculator service are entitled to immunity. Legislators also enjoy immunity from suit while in congress in the exercise of their legislative functions.In personal injury suits, there are cases where there are two or more tort-feasors who are jointly and severally liable for the injury caused to the plaintiff. Joint tort-feasors are entitled to right of contribution and pro-rata share of the money judgment provided the common liability for damages has been satisfy in full. The right to contribution is granted only to a tort-feasor who has not willfully caused the injury. honorarium by one of the whole liability extinguishes the others and entitles one to recover contributions from the other tort-feasors. However release of one by the injured party does not necessarily release th e other tort-feasors unless provided for in the release, but the claim shall be reduced proportionate to the amount in the release. The party to whom release is granted is exculpated from all liability for contribution to the other co defendants.The proportional degree of fault or negligence of the tort-feasors shall line up their pro-rata share in the liability. However, this issue of proportionate fault should have been litigated and decided in the same action for damages by way of cross-complaint. In case a defendant has paid the whole duty or more than his share in the claim he is entitled to indemnity by register a cross-claim against a co party. Where a tort-feasor is entitled to indemnity, the right is for indemnity and not for contribution.Workers Compensation, No-Fault political machine Insurance Workers compensation is an option to the tort system. Firms self-insure or purchase thespians compensation insurance as mandated by the state law for the benefit of the workers who sometimes are injured in the performance of their duties. The insurer pays the worker medical expenses and average wage while under recovery. The only requirement to avail of this benefit is that the injury must be work-related. It does not matter whether there is negligence on the part of the employee or employer. Under this alternative, there is guaranteed income, and because of this, the employee waives his right to sue his employer for work-related injuries sustained. The problems of long and costly court cases to narrow down who is at fault led to the enactment of the no-fault auto insurance laws that provide for the payment of policy holders irrespective of fault and also limits the right to sue. This is known as personal injury protection or PIP first party coverage. This is also an alternative to the tort system. Motorists are allowed to sue only under certain thresholds involving grimness of injury. The law intends to reduce vehicular accidents cases clogging the cour ts, limiting payment for losses and restricting recovery for non-economic damages thus, reducing premiums on auto insurance.Defamation, Injurious Falsehood, Invasion of PrivacyDefamation is one of the dignitary torts which refers to the issuing or issue of a false statement to a third party about another person, resulting to another persons injured reputation which entitles him to damages. Defamation in print is called libel. Oral or spoken denigration is slander. To have ones reputation remain untarnished is one of the rights of a person under the civil law system.The burden of proof lies with the defendant to prove his innocence. The plaintiff does not need to prove intent to besmirch his reputation and the actual damage suffered. However, the requirement to prove damage is not solely abstracted in all slander cases. The Ontario Libel and Slander Act of Canada still requires proof of damage in cases where the damaged reputation of the plaintiff resulted to loss of business cont ract. The tort of injurious falsehood or slander of goods applies where a persons goods are discredited resulting to economic loss, usually made by dissatisfied customers or dismissed employees. Monetary loss must to be proved to obtain recovery for damages. The elements for this tort are a statement about the goods that there is falsity in the statement which was produce maliciously and that the plaintiff suffered damages. To establish slander of goods, the statement must cause a reasonable person to believe that the statement is true. The defendant need not mention the product or name of the plaintiff to be liable. It is enough that an implication be drawn by the public that the defendants derogatory statement refers to the goods in issue where for example there is only but two products of same mannikin in the industry. Invasion of privacy is another form of dignitary tort. This is a right also protected by the Constitution under the Fourth Amendment, for a person to be left a lone by himself free from interference or abuses of the government. This includes the right to property against unreasonable search and seizure. Invasion of property by private individuals is dealt with under private tort law. Four categories are set forth under this tort. one and only(a) is intrusion of solitude which arises when a person presents or displays another to unjustifiable promotional material or publicity.Another category is public disclosure which is revealing of private information though conforming to righteousness is appalling to a sensible person. The third category is false light which places another person before the public in a false light through magic trick of a persons character, beliefs and activities and the last of the categories is appropriation which involves using the persons identity or visual representation without his consent for the benefit of another person. Invasion of privacy entitles an injured person to compensatory damages and punitive just ice.Misrepresentation whatever averment or expression conducted in any manner that is not in accord with facts is misrepresentation. It is a civil wrong and creates civil liability if monetary loss ensues. A person making misrepresentation to be held liable, the misrepresentation must be relied upon by the recipient or taker of the falsified statement and the maker knew of such fact. Misrepresentation creates liability whether committed intentionally or unintentionally.In a contract, misrepresentation bestows a person a valid ground for the rescission of contract. An insurance policy contract may be cancelled due to material misrepresentation made by the insured or the insurer may baulk a claim. An opinion that is not a true statement is not a misrepresentation of fact. However a promise which the maker has no intention of carrying out that induces another person to enter into an bargain is an actionable tort.Interference with Economic Relations Interference with economic relati ons is an economic tort the take aim of which is to protect people from intervention with their commercial or business relations thus maintaining contractual stability. It has been held in a number of cases that an accomplice or main courseory to breach an existing contract is liable for economic loss sustained by a party to the contract.In an action for interference with economic relations, it is essential that the plaintiff must prove the existence of a contractual relation between him and a third party that the defendant has knowledge of such contractual relation and that defendant intentionally, with malice did disturbed said contractual relation. Damage must be proved, but it is presumed when it is a direct consequence of the disturbance and ultimately the breach of contract.Interference may include also inducement or persuasion to a person not to continue with a prospective business relation or preventing a party not to enter such a relation. Interference with a pre-contract ual business relation is however considered lawful unless wrongful means are employed. Several factors have to be looked into in deciding impropriety of the means used to interfere. One of these is the motive of the party interfering. Another consideration is the interest of the parties involved in the unlawful interference. To determine whether interference is proper, industrial ethics and practices are substantively necessary.The interference or economic tort does not only protect contractual interest but also ethical and legal interest thus upholding contract as a legal instrument in promoting trade and competition.Unjustifiable judicial proceeding Unjustifiable Litigation also commonly known as malicious quest, an intentional tort has been securely instituted in law. An action for malicious pursuit is a remedy for recovery used by victims injured by light judicial proceedings. The underlying principle of this tort is an effort to equalize conflicting interests. Plaintiffs hav e the right to access to courts without concern of inculpation.Public policy requires that defendants interest be also protected against unworthy litigations through this remediation. Sometimes people, prompted with malice come to court even without probable cause only to chivvy other people. In a cause of action for malicious prosecution, the plaintiff must establish that the earlier action was filed at the behest of the defendant and that it was terminated in his (plaintiff) favor that it was initiated without probable cause and was brought with malice.However, malicious prosecution cases filed on the basis of absence of probable cause usually do not lie or prosper because it is for the court to determine the existence of probable cause as it is a legal question. effective authorities said that malicious prosecution deters claimants to institute criminal proceedings for fear of facing exuberant litigation after the initial action has been decided not in their favor. In a case , the peremptory Court settled that it is not sensible to desert or loosen the restrictions on malicious prosecution (Sheldon v. AO).ReferenceSupreme Court of California (l989, January 12). Sheldon Appel Co. v. Albert Oliker,Cite as 47 Cal.3d 863, 765 P.2d 498, 254 Cal.Rptr. 336. Retrieved on September 16,2007 from http//www.casp.net/oliker-1.html