Legal remedies to correct tortious conduct

A person who initiates a tort suit is attempting to correct the supposed wrong done by asking for damages or an injunction, or both. Although the availability of an injunction as a remedy is significant, it is the promise or threat of a damage award that most often draws natural persons, associations, partnerships, corporations, and even the government (acting as private individual) into court under the tort law. Let’s take a look at the various types and amounts of damages that may be available to litigants.

Actual damages (also referred to as compensatory damages) are the most important and most frequently sought damages. These damages are intended to compensate the victim for the real harm done. If property is damaged or destroyed, then the amount necessary to repair or replace it would be awarded. If a person is injured, damages would include payment for lost wages, medical bills, and the pain and suffering that the person endured.

If the tortfeasor’s acts are notoriously wilful and malicious, a court may impose exemplary damages (or punitive damages in some jurisdictions), which are damages above and beyond those needed to compensate the injured party. Punitive damages are designed to punish the tortfeasor so that similar actions are avoided by others.

Note that where there has been improper conduct but little in the way of actual loss the law still awards a small amount of damages to the victim. Such awards are referred to as nominal damages. At times, these damages may be all that the victim receives as a result of her or his lawsuit. However, they do represent an acknowledgment by the law that the victim’s rights have been violated.

Finally, do not forget that attorney’s fees and expenses will not be awarded by the court in these cases. They are instead payable out of the pocket or recovery of the litigants. Many tort suits are brought on a percentage of recovery basis. Under such an arrangement, anywhere from 25 percent to 40 percent of the recovery may go to the attorney.

1. Differentiate between the above remedies and damages.

2. Consult a lawyer or a student in law and dwell on types of remedies and damages existing in your jurisdiction.

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Violations of duty and legal liability

No legal liability can be imposed against an individual unless two elements are present: the first element is duty, which is an obligation placed on individuals because of the law; the second element is a violation of that duty. A duty can be violated intentionally, through negligence, or under the theory of strict liability.

Intentional violations of duty include a variety of intentional torts, all of which have their own individual elements. The principal intentional torts are assault, battery, false imprisonment, defamation (libel and slander), invasion of privacy, misuse of legal procedure, infliction of emotional distress, nuisance. The intentional torts that most directly affect businesses are the following: interference with a contract, infringement of patent, trademark and copyright rights, disparagement of reputation.

People and property are sometimes injured even when no one intends that the injury occur. Such an occurrence is usually labelled “an accident”. Justice demands that the injured party be compensated. That part of tort law that is concerned with the compensation of accident victims is called negligence. Four elements must be present to establish negligence: legal duty, breach of duty through a failure to meet the appropriate standard of care, legal (or proximate) cause, and actual injury.

Several defenses can be used by the defendant in a negligence case. These defenses include contributory negligence, comparative negligence, and assumption of the risk. The defense of contributory negligence involves the failure of the injured party to be careful enough to ensure personal safety and completely prevents recovery by the injured party. The doctrine of comparative negligence requires courts to weigh the relative degree of wrongdoing in awarding damages, and to assign damages according to the degree of fault of each party. A final defense worth mentioning is assumption of risk. If the injured party knew of the specific risk involved, yet voluntary assumed it, recovery may be limited or even precluded.

The tort of negligence is used in many different situations: when someone falls into a hole in the road, for example, or is given the wrong treatment by a hospital, or is injured by faulty machinery at work. The number of negligence actions is increasing all over the world, as is the amount of damages. In the United States, doctors, dentists and lawyers are often sued for millions of dollars. This has in turn increased the cost of many services since such professionals have to pay very high insurance premiums to cover themselves in case they are ever successfully sued.

Under the doctrine of strict liability or absolute liability, the court will hold a tortfeasor liable for injuries to a victim even though the tortfeasor did not intend the harm and was not, in any way, negligent. Strict liability is generally applied when the harm results from an ultrahazardous or very dangerous activity, e.g. detonating explosives, damming streams, and also keeping wild animals.

While we are discussing strict liability, it is a good idea for us to focus for a moment on a fast-growing area of the law that is in the process of embracing strict liability principles. That area is product liability. Until the last few years, if you were injured by a defective product, your only way to collect was by providing enough evidence to prove the negligence of the manufacturer. This process often proved to be difficult, expensive and unsuccessful. This was due mainly to the complexity of the engineering involved in modern products and to the fact that the evidence was initially in the hands of the manufacturer. Gradually the law has changed and today it is enough for the injured party to show the following: 1) that the injury came from the use of the product in the manner intended; 2) that there was an unreasonably dangerous defect in the product; 3) that the defendant was engaged in the business of manufacturing or selling the product; 4) that the product had not been substantially altered by the time of the injury.

Businesspeople must be especially aware of tort law because of the doctrine of respondeat superior (let the master respond). That doctrine may impose legal liability on employers and make them pay for the torts committed by their employees within the scope of the employer’s business.

Nevertheless the number and variety of negligence actions increases year by year. At one time cases were only actionable if personal injury or damage to property could be shown, but it is now possible to claim for financial loss connected to this. Indeed, a person may sue for economic loss alone if this resulted from a negligent false statement, as in the case of a garage owner whose business failed to make profits because the previous owner had not told him a new road being built would divert cars away from the garage. Damages are now awarded for the mental distress caused by an accident, as well as the physical suffering. And it may even be possible for a third party to sue after suffering nervous shock as the result of witnessing an accident.

1. What two elements should be present so that a legal liability can be imposed?

2. What are the main intentional torts?

3. What is known by the tort of negligence? What are its main elements?

4. What defenses to negligence do you know? Explain each.

5. Why is the number of cases of negligence rising every year?

6. When is the principle of strict liability applied? Give your examples.

7. What is product liability? Why was it difficult to prove? Has the situation changed today?

8. Explain the doctrine of respondeat superior. Why is it important for businessmen to be aware of it?

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