Issues in Tort Law: Duty and Reasonableness of Care - Essay Example

ISSUES IN TORT LAW Issues in Tort Law: Duty and Reasonableness of Care I. Introduction Torts is a category of law that deals with personal injury. There are several types of personal injuries, to be sure-both intentional and unintentional, dealing with the issues of negligence and so forth. Basically, there are six types of torts. There are intentional torts against persons, which deal with very specific charges that are incurred when one person injures another. Other categories of torts similarly deal with different types of wrongs committed, including: intentional torts against property; unintentional torts (negligence); and special negligence doctrines, including negligent infliction of emotional distress among others. Finally, defenses against negligence-as well as strict liability-will be examined. Herein are analyses of all these aspects of torts. II. Intentional Torts Against Persons a) Assault "In most states, an assault/battery is committed when one person 1) tries to or does physically strike another, or 2) acts in a threatening manner to put another in fear of immediate harm. Many states declare that a more serious or 'aggravated' assault/battery occurs when one 1) tries to or does cause severe injury to another, or 2) causes injury through use of a deadly weapon" ("Assault/Battery," 2009). In many states now, there is actually little difference between verbal threats and actual physical injuries being incurred. One example of assault was the recent "battle" between model and actress Tila Tequila (actual name Tila Nguyen) and NFL player Shawne Merriman. There was a big to-do on social networking site Twitter about the incident, in which Tila Tequila brazenly told her Twitter followers that she had been assaulted by Merriman. According to her, she had been threatened with a gun at one point. The charges were later dropped, but Tila Tequila maintained her position as the victim of assault. b) Battery a. Battery is physical contact made without consent. Technically, battery is: b. "willful and unlawful use of force or violence upon the person of another; actual, intentional and unlawful touching or striking of another person against the will of the other; or unlawfully and intentionally causing bodily harm to an individual" ("Battery Law and Legal Definition," 2009). In the tussle between Tila Tequila and Shawne Merriman, for example, Tila claimed that she had been severely injured while fighting with Merriman. She showed evidence of bruising and claimed that Merriman had beaten her and choked her. Since obviously Merriman made unwanted physical contact, this constituted battery. However, once again in this case, as mentioned before, the charges were dropped. c. c) False Imprisonment False imprisonment is when a person is held by another person or organization against his or her will. This means that someone is, without that person's consent, having their movements restricted by another person or an institution. False imprisonment is a very serious crime, and it is prosecuted vigorously. Holding someone against one's will is a reprehensible act that closely resembles, but is not necessarily the same as, kidnapping. Tila Tequila also claimed that she had been a victim of false imprisonment. She claimed that she was not allowed to leave the house where she had been staying. This charge was also dropped however, and the DA decided not to prosecute. d) Misappropriation of the Right to Publicity According to Frackman et. al. (1996), "The right of publicity makes it unlawful to use another's identity for commercial advantage without permission. In recent years, that right has grown to encompass the potential misappropriation of voice, performance style, former names, and maybe, as contended in a case recently filed in Indiana regarding the race horse Cigar, . . . the image of an animal." Misappropriation of the right to publicity basically means that someone's privacy is being invaded in some way, shape, or form. e) Invasion of the Right to Privacy An invasion of the right to privacy is a direct intrusion on someone's personal space. This "invasion of privacy," so to speak, is not legislated per se. However, various celebrities and other personalities of note have invoked the invasion of the right to privacy in court cases. Using the name or likeness of a person can also get one into trouble in regard to the invasion of privacy. This is a bit like intellectual property law, where someone's image is protected. Interference with the First Amendment can be a cause of torts. In the case of invasion of the right of privacy, this applies occasionally. III. Intentional Torts Against Property a) Trespass to Land A trespass to land is when one person enters another person's property unlawfully. Technically there is a designation made that "no trespassing" is allowed. Someone who refuses to regard such a sign is breaking the law. b) Trespass To and Conversion of Personal Property "Both trespassconversion are intended to protect the wrongful, intentional interference of personal propertyIf the interfering person has merely challenged the right of possession, then there has been a trespass to chattel. If the interfering person, however, has created a ['forced sale'], then there is conversion" ("What Is the Difference Between Trespass to Chattel and Conversion," 2009). The difference between both of these is the degree to which the person committing the crime takes possession. IV. Unintentional Torts (Negligence) a) Duty of Care Duty of care basically means that a reasonable person has a duty to another person to make sure that he or she does not have any kind of trouble. This means that anyone should act reasonably according with to the situation at hand. For example, one example of duty of care is that, if an oncoming car is about to hit a pedestrian, and a passersby had the chance to save the person, this is called the person's duty of care. Any reasonably-acting person would have tried to get the pedestrian out of the way of the oncoming car. b) Breach of Duty Breach of duty occurs when a person has a duty to perform for a person, but he or she does not do it. For instance, in the previous example with the car about to hit the pedestrian, the onlooker would have performed a breach of duty by not rescuing the pedestrian who was going to be hit by the car. V. Special Negligence Doctrines a) Professional Malpractice "Professional [malpractice or professional] negligence refers to the negligent acts of a medical provider. This can include doctors, nurses, caregivers, dentists and other health related professionals. A claim for professional malpractice basically asserts that the professional involved failed to act like other professionals would have acted in the same of similar circumstances" ("What is Professional Malpractice" 2009). For example, if one went to a doctor to have a liver transplant and instead got a kidney transplant, this would be one example of professional malpractice, a form of negligence. One negligence case that is probably going to get much press in the news is the death of Michael Jackson. Supposedly, Jackson's doctor, Conrad Murray, will probably be charged with professional malpractice. That is not the only charge that will most likely be brought against him, but basically Murray was negligent in administering a certain medication to Michael Jackson. The medication was called Propofol, and it is actually an anesthetic used only in hospitals, for the most part. However, apparently Jackson had been using Propofol for quite some time for "sleeping" purposes. Technically, the brain (nor the body) is getting any sleep when being anesthetized. Apparently, however, this gave Jackson the illusion of having appeared rested. In this type of semi-vegetative state, however, one is not really receiving any relief in terms of a sleep deficit. Propofol mainly knocks someone unconscious. Jackson mistakenly thought that this meant he was asleep every time he took Propofol. "The very potent drug, also known as Diprivan, is administered intravenously as a general anesthetic used to sedate patients for surgery and is only available to medical personnel. This drug is only used as an anesthetic agent for surgery. It works very quickly, usually in 30 seconds, to knock out a patient" ("Michael Jackson's Death Could Be Related to Medical Malpractice," 2009). Dr. Conrad Murray apparently had other malpractice suits pending against him and was in quite a bit of financial trouble. He had been hoping to use the money paid to him by Michael Jackson in order to pay off outstanding debts. Currently, Murray has not been charged with anything formally, as an investigation is still pending. However, many believe that Dr. Murray will formally, at some point, be charged with involuntary manslaughter. b) Negligent Infliction of Emotional Distress Negligent infliction of emotional distress means that a client has been caused emotional distress by someone. Either this distress was intentional or unintentional, but nevertheless, a client can sue for damages based on emotional distress. Take, for example, a woman who has her health insurance revoked. Her husband might be able to sue the insurance company if he can reasonably prove that the revocation of his wife's health insurance caused him emotional distress. VI. Defenses Against Negligence a) Superseding, or Intervening, Event A superceding cause or event is "the same as an 'intervening cause,' or 'supervening cause,' which is an event which occurs after the initial act leading to an accident, and substantially causes the accident. The superseding cause relieves from responsibility (liability) the party whose act started the series of events which led to the accident, since the original negligence is no longer the proximate cause" ("Superceding Cause," 2009). b) Assumption of the Risk "[One] defense that traditionally has barred recovery for a plaintiff applies when a plaintiff has assumed the risk involved in an obviously dangerous activity but proceeded to engage in the activity anyway. In order for this doctrine to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity" ("Defenses to Negligence Claims," 2009). If, for example, someone went skydiving and then died and the person's family sued for negligence, the skydiving company could use the Assumption of the Risk for the defense, claiming that obviously the customer who was going skydiving must have taken into account the inherent risks of skydiving before going skydiving. In this case, the skydiving company would not be negligent. An assumption of risk basically means, in layman's terms, that one should know the risk involved in any activity. For example, if someone is going bungee jumping, one assumes that there are inherent risks associated with that activity. For example, some of the things that could happen are: the rope could break, one could hit one's head on an object, or the spine might be affected if the rope recoils too fast and one's body is pulled like a rag doll back up after bouncing down. If someone injured his or her spine bungee jumping and then tried to sue, for instance, the maker of the bungee cord, the maker of the bungee cord would most likely say something like, "The person who bungee jumped made an assumption of risk in performing this activity. Therefore, we (as the bungee cord company) are not liable." Now, with regards to product liability, that is another case entirely and deals more with the subject of strict liability. VII. Strict Liability Strict liability means that a person or organization is liable for his or her actions or inactions regardless of fault, i.e., a crime that does not require mens rea (intent). Therefore, strict liability is enforced regardless of intent. This means, that, for instance, someone is liable for his or her actions or inactions whether or not there is culpability involved. Crimes involving strict liability include, for example, statutory rape. Even if a person thought he or she was not having sex with a minor, but later found out that he or she was, that person is strictly liable regardless of whether that person knew the person he or she had sex with was underage. Additionally, as an example, let one say that someone sold alcohol to a minor. That person would then be guilty of having sold alcohol to the minor due to strict liability even if that person was unaware the person was a minor. VIII. Conclusion The matter of torts is quite complicated. There are various kinds of torts. Examples of each kind of tort, as well as some defenses against torts, and strict liability, have been examined here. Culpability in torts is not always easily determined. However, with the help of a decent personal injury lawyer, one can find justice for oneself in the court system. Personal injury is a serious matter, and should be prosecuted accordingly. REFERENCES Assault/battery. (2009). Available: http://criminal.findlaw.com/crimes/a-z/assault_battery.html. Battery law and legal definition. (2009). Available: http://definitions.uslegal.com/b/battery/. Defenses to negligence claims. (2009). Available: http://injury.findlaw.com/personal-injury/personal-injury-law/negligence/defenses-to-negligence- claims.html. Frackman, R.J., & Bloomfield, T.C. (1996). The right of publicity: going to the dogs Available: http://www.gseis.ucla.edu/iclp/rftb.html. Michael Jackson's death could be related to medical malpractice. (2009). Available: http://www.hsinjurylaw.com/library/medical-malpractice-could-be-cause-of-michael-jacksons- death.cfm. Superceding cause. (2009). Available: http://legal-dictionary.thefreedictionary.com/superseding+cause. What is the difference between trespass to chattel and conversion (2009). Available: http://www.legalmatch.com/law-library/article/trespass-to-chattel.html. What is professional malpractice (2009). Available: http://resources.lawinfo.com/en/Legal-FAQs/Medical-Negligence/Federal/what-is-professional- malpractice-.html. Read More