TORTS LAW

• Tort law vs. contract law (in the Anglo-American

tradition)
Overlap:
product liability (the plaintiff may sue either in tort for strict liability or
negligence, or in contract for breach of warranty)

• Tort law vs. criminal law

• both focus on wrongful acts (but most common T is negligence, and
crimes require intent)

• Unlike in some countries, a civil claim for damages cannot be

appended to a criminal prosecution (thus a crime victim wishing to
get monetary compensation must file a seperate civil lawsuit
 WHAT are TORTS?
• Civil wrongs

• wrongful acts which injure the body, property, reputation,

and can result in civil liability

• contract law - enforces duties set out in parties

agreements
• tort law requires no express agreement between the
parties for a duty to arise, but simply assumes that all
members of society have a common, unspoken duty to
refrain from behaviour that creates an unreasonable risk
of harm to other people
• Civil law:

• unified approach that considers both contractual and

non-contractual civil wrongs under the heading “law of
obligations”

• Obvezno pravo / odštetno pravo / izvanugovorno pravo

Sources of tort law

• Tort law in the US is mostly common law

• This means that courts have the power to shape and change the
elements of claims and defenses of existing torts

• Categories of torts (according to the degree of fault of tortfeasor):

•
• intentional torts
• negligent torts and
• liability without fault
1. Examples of intentional torts
• A person acts intentionally with respect to injury when
that person desires to cause a certain injury

• Battery

• False imprisonment

• Tresspass to land
2. Negligence
• we presume that everyone knows what acts or omission create
unreasonabse risks of harm

• conduct that falls below the standard of care deemed by the law as
necessary to protect others from unreasonable risk

Most common type of n:

Negligence as the breach of a duty of care

Reasonable Person Standard – the standard of care to which people

are expected to conform their conduct , i.e. how a ‘reasonable person’
would have acted

* To what standard will a child or a person with disability be held?

2. Negligence
• Negligence of professionals (medical malpractice)
• a professional version of the reasonable person standard
is applied

• How can one prove negligence?

• Causal link (a ‘but for’ test)

• Plaintiff must prove he/she would not have been injured
‘but for’ the act of the defendant
2. Negligence

• In other words, causation/a proximate cause is needed

between the tortfeasor’s action and the injury

• Palsgraf vs. Long Island Railroad

• “Nepažljivo postupa onaj tko ne želi nastupanje štetne
posljedice niti na nju pristaje, ali se ipak ne ponaša onako
kako to pravni poredak od njega očekuje. On je lakomislen te
smatra da do štete neće doći ili da će je moći spriječiti
(svjesna nepažnja) ili pak uopće ne zna da svojim
postupanjem može uzrokovati štetu, a trebao bi biti toga
svjestan (nesvjesna nepažnja).

• Razlikuju se dva stupnja nepažnje i to: krajnja nepažnja

(culpa lata) kad netko ne postupa ni s onakvom pažnjom
koju bi upotrijebio svaki prosječan čovjek, te obična
nepažnja (culpa levis) kad netko nije postupao kao
naročito pažljiv čovjek.” (VSRH, Rev 387/1998­2, od 19.
ožujka 1998.)
3. Liability without fault
• strict liability

• when the law imposes liability without requiring proof of

intent, negligence, recklessness or any other fault.

• e.g. products liability – a supplier of a product

(manufacturer, distributor or seller) is liable for personal
injury or property damage suffered by the ultimate
consumer or user of that product
• Defective – if the product contains some irregularity that
renders it not reasonably safe. The defect can exist
through

• (1) defective manufacturing,

• (2) defective design or
• (3) a failure to warn of a potential hazard associated with
the product
Special category: Torts vindicating particular
interests
• Misuse of legal procedures: malicious prosecution,
frivolous lawsuits (absence of probable cause) etc., and

• Defamation – injury to reputation of another person

• Elemets: (1) the defendant made a defamatory

statement concerning the plaintff, (2) the statement was
“published”; and (3) the statement damages the plaintiff’s
reputation
• PUBLICATION - means that the statement was
communicated to another person

• Defamation can be either written (libel) or oral (slander).

• One who re-publishes (repeats) a defamation is subject
to liability

• Absolute privilege (e.g. husband and wife are a.

privileged to defame each other), truth, fair comment etc.
– defense to d.
Internet libel
• In order for a comment, post or article to constitute internet libel, the
following elements must typically be met:

• One must prove that the statement constitutes a false statement of

fact
• A fact is different than an opinion. A fact can be proven true or false.
Opinions are typically not actionable as defamation

• The false statement of fact must harm one’s reputation

• In order to constitute libel, a statement must not only be false but

must harm someone‘s or a company’s reputation and cause harm
(there are many false statements posted across the Internet)
• The false statement of fact causing harm must be made
without adequate due diligence or research into the
truthfulness of the statement
•
• Alternatively, plaintiffs often attempt to prove that the
false statement of fact was made with full knowledge of
its falsity or with reckless disregard of its falsity

• If the person who is the subject of the false statement of

fact is a celebrity or public official, the plaintiff must also
prove “malice”
• Malice is proven when the person posting the
information on the internet intended to do harm
KZ
•
Kleveta
•
Članak 149.
• (1) Tko pred drugim za nekoga iznese ili pronese neistinitu
činjeničnu tvrdnju koja može škoditi njegovoj časti ili ugledu, znajući
da je neistinita, kaznit će se novčanom kaznom do tristo šezdeset
dnevnih iznosa.

• (2) Tko djelo iz stavka 1. ovoga članka počini putem tiska, radija,
televizije, računalnog sustava ili mreže, na javnom skupu ili na drugi
način zbog čega je ono postalo pristupačno većem broju osoba,
kaznit će se novčanom kaznom do petsto dnevnih iznosa.
•
• Članak 150.

• (1) Kaznena djela protiv časti i ugleda progone se po

privatnoj tužbi.

• (2) Ako su kaznena djela protiv časti i ugleda počinjena

prema umrloj osobi, kazneni postupak može se
pokrenuti privatnom tužbom bračnog ili izvanbračnog
druga, istospolnog partnera, roditelja, djece, posvojitelja,
posvojenika, braće ili sestara umrle osobe.
True or false
• a) The defense of necessity is sometimes used for
trespass and conversion!
• In Texas and Louisiana you can use deadly force to protect your car.

• b) US law differentiates private and public necessity.

• E.g. upon learning that Union Troops were approaching,

the citizens of a town in Tennessee destroyed all the
whiskey of a local distillery for fear that the Union troops
would get drunk on the whiskey and pillage the town.
• the distillery sued in conversion to recover the value of
the whiskey, but the town successfully raised the
defense of public necessity

• private necessity is similar to public necessity except that

an individual’s property is harmed in order to prevent a
greater harm to another individual or to property
Q&A
• Lee v. National League Baseball Club of Milwaukee

• Assumpiton of risks (common defense for negligence)

• A spectator at a baseball game is trampled by an unruly

crowd chasing a baseball hit into the stands.

• Can he plead negligence (foreseeability of injuries)? Is

that type of risk anticipated at a baseball game?
• NO

• the Court said:

• “A person does not assume risks not reasonably

contemplated.”
Q&A
• Schroyer v. McNeal

• The plaintiff used a motel’s side door where the ice has
not been cleared away to bring things in from her car.

• She made one trip without mishap, but fell and broke her
ankle during the second.

• Could she assumed that risk?

• Or was she successful in suing for damages?
• Yes.

• She was held to have assumed that risk.

Q&A
• Rovira v. Boget – defamation claim based on an
ambiguous phrase

• Facts:

• The plaintiff was a stewardess on a steamer cruiser.

• The defendant, second steward on the ship, after a heated
exchange allegedly referred to the plaintiff as “worse than a cocotte”.

• She sued for slander.

• Legal issue:

• Cocotte – word of French origin is ambiguous – refers to

a prostitute as well as a poached egg, even a dish

• the court said jury must decide what a reasonable

listener would understand under cocotte (depending
on the context)
• From Black's Law Dictionary:

Cocotte: a woman who leads a fast life, one who gives

herself up for money. Also a poached egg.
Cite: Rovira v. Boget, 240 N.Y. 214, 148 N.E. 534, 535
Q&A
• Immunities are defenses to tort liability granted to a
particular class of people.

• Husband and wife; parent and child and governmental

immunity.

• Husbands and wives can not sue each other because

they are considered to be the same person in the eyes of
the law. ???
• It used to be so, now most states allow suits between
husband and wife and children and parents.

• Interspousl tort immunity is abolished.

Q&A
• A 24-year old former McDonald’s restaurant employee
spit into a police officer’s sandwich in Michigan.

• He was charged with placing harmful objects in food and

sentenced to 29 months behind bars. True or false?
Q&A
• McDonald’s Corp. V. Louise Ogborn

• Facts
• In 2004 L. Ogborn worked in one of M. restaurants in
Kentucky. An unkown individual called the restauraunt
and claimed to be a police officer investigating a purse or
wallet theft.

• During the three-hour ordeal, the caller persuaded an

assistant manager to take Ogborn’s clothes while she
was held in a back office. The caller also persuaded the
assistant manager to recruit her fiancé to watch Ogborn.
• When the assistant manager left the room, the fiancé
• even sexually assaulted Ogburn.

• Can Ogburn sue for damages? Whom?

• Are there elements of a tort here?

• Who is liable for the sexual assault?

Finding
• the court found that McDonald’s knew of 30 hoax
telephone calls placed to its restaurants from 1994 to
2004, including several calls to Kentucky restaurants, in
which the caller persuaded managers and employees to
conduct strip searches and sexual assaults.

• the evidence supports a reasonable conclusion that

McDonald’s corporate management consciously decided
not to warn and train store managers and employees
about the calls.
• A jury awarded Ogborn $ 1.1 million in compensatory
damages and $5 million in punitive damages for the
plaintiff’s sexual harassment, false imprisonment,
premise liability and negligence claims.

• Translate into Croatian!

Q&A
• A nurse fell asleep at the wheel and killed two people.
• The accident happened on her way home after having
finished a 12- hour shift and mandatory training (ordered
by the hospital).

• Liability? Can the hospital be liable? (Wrongful death?)

• Finding:

• Both nurse and the hospital are liable.

• “She was acting in the scope of her employment at the

time of the accident.“
Q&A
• Dram Shop Liability

• Many US states have Dram Shop acts which establish

liability for taverns for injuries inflicted by a person who
became intoxicated at a given tavern or who was already
intoxicated when served by that tavern.

• this form of liability has been extended through case law

to social hosts of parties!

• * “Dram Shop” is an 18th century term for a tavern and used today only to
refer to this kind of liability.
• (Dram Shop Act) or case law in 38 states which makes a
business which sells alcoholic drinks or a host who
serves liquor to a drinker who is obviously intoxicated or
close to it, strictly liable to anyone injured by the drunken
patron or guest.
• * California recently passed legislation specifically
banning such strict liability. It is often hard to prove that
the liquor bought or served was the specific cause of an
accident (such as an automobile crash while driving
home), since there is always an intervening cause,
namely, the drunk.