Torts and Damages

Up to now, everything discussed has

related to contract liabilities- voluntary
assumptions of obligation and risk
Tort duties are legal liabilities
independent of contract standing- apply
to involuntary assumption of liability and
risk
Tortfeasor- party who breaches a tort
duty
Victim-party suffering loss due to breach
Torts and Damages
Types of torts (Names differ by jurisdiction-
many types not listed, all are civil matters
Negligence- unreasonable actions
Fraud- misrepresentation for value
Libel- untrue written statements causing loss
Slander- untrue spoken statements causing
loss
Battery- touching without consent
Assault- threatening to touch without
consent
Torts and Damages
Reasonable Doubt
Government prosecutes
Jury system
Punishment
Preponderance of Evidence
2-Party suits
Voluntary
No punishment
Involuntary
Punishment
Torts and Damages
Intentional torts carry punitive damages
Intent is to make people pay for injuries
resulting from their unreasonable acts
Four general categories of tort common in
construction
Negligence
Intentional tort/ Fraud
Strict liability
Deceptive practices

Torts and Damages
Negligence- failure to act reasonably
causing injury to others (most common
tort)
Must prove all of the following
Existence of duty to be reasonable
Breach of that duty
Damages incurred as a result of that
breach
Causation between breach and
damage is direct


Torts and Damages
We all have a duty to act reasonably in
certain situations (driving, public gatherings,
professional relationships, manufacturing
and selling)
Duty must be based on a specific act- cant
sue for general unreasonableness
Arch/Engr has no duty to contractor, cant
sue for tort (in general) except for things
such as safety, injury from design flaw, etc.
Torts and Damages
Breach- prove that the specific act
was unreasonable for the conditions
(speeding, yelling fire). Harder to
prove than duty
Damages- injured person must prove
loss- no loss-no tort
Causation- loss caused directly by
breach (aggravating condition can be
included, but not original condition)
can be hard to prove
Torts and Damages
Making a mistake is not the same as negligence.
Reasonableness standard protects to some degree
Misrepresentation of fact is a special form of
negligence when no reasonable grounds for
believing a statement can be found
Statement issued as fact (this drug is safe)
Statement is false (drug causes heart problem)
No reasonable grounds for belief (drug wasnt
tested)
Party justifiably relies on statement (party takes
drug)
Damages result (Party has heart damage)
Torts and Damages
Negligence per se- violation of statute, no
proof of duty or breach required
Valid ordinance was violated
Injured party is member of protected class
Harm suffered is prevented by the ordinance
Violation of statute caused harm or damages
Party suffered loss
OSHA, ADA, EEO, building codes, etc
Currently undergoing re-interpretation
Torts and Damages
Liability of designers to subsequent
users- duty exists to subsequent
users of a product. Remodeling
industrial sites
Liability of designers to subcontractors
and contractor differs by jurisdiction
Majority rule- no duty exists, so no
damages can be collected from
designer except for personal injury
Torts and Damages
California Rule
Balance test under theory of negligence
Degree of certainty of harm
Foreseeability of harm
Closeness of connection between
conduct and injury
Advancing policies to prevent future harm
Assignability of moral blame
Difficult to enforce
Torts and Damages
Intentional Tort (Fraud)- presence of
intent to cause injury or harm makes
tort intentional (difficult to prove intent)
Fraud (deceit, misrepresentation,
false claim) is the most common
intentional tort in construction
Torts and Damages
Fraud
False representation or nondisclosure
of material fact
With intent to deceive
Misleading statement was relied on by
complainant
Actual damages result
Torts and Damages
Deceptive practice laws- discourage
fraud and make it easier to bring the
case (no longer need to prove intent)
Deception is inherent in the act
covered by the statute
Contorts- claiming a contract breach
as a tort.
Torts and Damages
Contorts
Torts carry higher awards than contract
cases
Lawyers prefer tort claims
Try to claim some specific action under
contract is actually a tort
Historic reluctance by the court to allow
breach of contract to be turned into a tort
Mostly for personal contracts (not
construction)
Torts and Damages
Strict liability-only applied in very limited
situations such as manufacture of defective
products or practice (blasting)
Manufacturers of defective products are
strictly liable for injury IF
Flaw is present at time of sale AND
Flaw causes injury OR
Manufacturer fails to warn of risk OR
Product has correctable design defect
Torts and Damages
Strict Liability of product manufacturers is
why we have so many warning labels on
products
Construction contractors are not considered
manufacturers of products
Assumption of risk- common defense
against tort in construction (and elsewhere)
Injured parties are responsible for their own
injury if they have voluntarily assume risk
inherent in the activity (sign a risk
assumption to go bungie jumping)
Torts and Damages
Proximate cause damages- tort damages
are generally greater than contract
damages because they include foreseeable
AND unforeseeable damages (proximate
cause)
Pain and suffering- compensation for
experience of pain and suffering over a
specified time. Difficult to assess, usually
per diem award. Includes emotional pain
Torts and Damages
Punitive damages- intentional torts
allow exemplary awards used to
make and example out of offender.
Frequently reduced by the court
Tort cases- McDonalds coffee, Toro
mowers, Philadelphia hospital
Calls for tort reform, resisted by trial
lawyers. Tort does allow for
eliminating the incompetent, but can
be abused. Key is to find the best
balance