Thinking Citizen Blog — What Are Torts? Who Cares? Who Should?
Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day
Today’s Topic: What Are Torts? Who Cares? Who Should?
What should every fifth grader know about torts? eighth grader? high school graduate? college graduate? why? Experts — please chime in. Correct, elaborate, elucidate.
TORTS ARE “PRIVATE WRONGS” CRIMES ARE “PUBLIC WRONGS”
1. So what’s the difference? And what about “double jeopardy” — I thought you couldn’t be tried for the same crime twice?
2. How then was OJ Simpson tried twice — once for the crime, another time for the “tort” of the same act?
3. Is this a “just system”? Is there a better one?
NB: In a tort case, the victim, not a district attorney brings the suit. In a tort case, the standard of guilt or innocence is preponderance of the evidence, not beyond the shadow of a doubt. In a tort case, no jail terms.
THREE KINDS OF TORTS: Intentional (think OJ), Negligence, Strict Liability
1. There are few intentional tort cases because most victims of crimes are “judgment proof” because they are poor.
2. Negligence: fault must be demonstrated.
3. Strict liability: no fault necessary as in product liability cases.
DEFENSES IN NEGLIGENCE CASES, TORT REFORM
1. “Contributory negligence” — the victim was also to blame — as in a traffic accident. This is a bar to recovery. Many jurisdictions have abolished this in favor of “comparative negligence” where fault is split between the parties.
2. “Assumption of risk” — can be explicit (as in a liability waiver) or implied.
3. Two areas of “tort reform” are reigning in extreme and capricious jury awards and medical malpractice suits.
NB: “In a study published in 2005 in the Journal of the American Medical Association, 93% of physicians surveyed reported practicing defensive medicine, or “[altering] clinical behavior because of the threat of malpractice liability.”
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