TORTS OR WRONGS

I.    DEFINITION.

A tort is a private or civil wrong or injury arising independent of contract. The gist of the matter is that the tortfeasor has breached the standard of care owed to the plaintiff under the circumstances. The standard of case is usually ordinary negligence or reasonable care, but it may also be expressed as a higher standard, such as reckless misconduct, wanton or intentional.
The proper remedy is an action for damages. There is a distinction between torts and crimes. If a wrongful act violates a private right it is a tort; if it violates a public right it is a crime. Very frequently wrongful act is in violation of both private and public rights. In such cases, even if the wrongdoer makes personal restitution or settlement with the person wronged, the state still has the right to punish the wrongdoer for the crime. Suppose A steals $500 from B, who finds it out and succeeds in getting A to return the money. A has still committed a crime against the public and can be punished as the law provides.

II.    COMMON TORTS.

MANY ASPECTS OF TORT LAW ARE COVERED BY STATUTES, INCLUDING STATUTES OF LIMITATION FOR DIFFERENT ACTIONS, CERTAIN DEFENSES AND LIMITATIONS UPON DAMAGES. IN EACH JURISDICTION CASE LAW WILL INTERPRET THE MANY FACT SITUATIONS INVOLVING THE ELEMENTS OF TORTS.

A.    ASSAULT AND BATTERY.

A person who intentionally invades the person of another by physical contact, or puts him in apprehension of an invasion of his person by threat of immediate physical contact, without such person's consent, and not in reasonable defense of person or other interest, and not in the performance of some duty imposed by law, or the exercise of some privilege by reason of the relation of the parties, is liable in damages. A successful assault becomes a battery when the injury is actually done.

1. Every person is entitled by law to liberty, security of life, and security of his property.
   
   
2. Mere words do not constitute an assault.
   
   
3. The wrong consists not so much in the actual striking of the person as in the manner and spirit of the act.
   
   
4. Accidental injury is not a battery.
   
   
5. A blow unlawfully aimed at one person but striking another is a battery.
   
   
6. Reasonable methods of self-defense may be employed in resisting a battery and in defending either a member of one's family or one's property.

B.    DEFAMATION.

A defamation is a false and malicious imputation of bad character or reputation either by slander or by libel. Every person has a right to his or her good reputation.

1. Every person is assumed to have a good reputation until the contrary is proved.
   
   
2. Slander is oral defamation. Speaking words in another's hearing that injure a third person's reputation. The United States Supreme Court has classified slanderous words that are objectionable:
   
   
   1. Words falsely spoken of a person that impute to the party the commission of some criminal offense involving moral turpitude for which the party, if the charge is true, may be indicted and punished.
      
      
   2. Words falsely spoken of a person that impute that the party is infected with some infectious disease, which, if the charge is true, would exclude the party from society.
      
      
   3. Defamatory words spoken of a party that impute to the party unfitness to perform the duties of an off-ice or employment for profit, or the want of integrity in the discharge of the duties of such an office or employment.
      
      
   4. Defamatory words falsely spoken of a party that prejudice such party in his or her profession or trade.
      
      
   5. Defamatory words falsely spoken of a person that, though not in themselves actionable, occasion the party special damage.

3. Libel is defamation in writing or printing (and in some states, by statute a radio or TV broadcast is a libel). It is even more dangerous to defame a person's character in writing. Many words when written or printed are libelous, which if spoken would not be slanderous without proof of special injury.
   

1. The owners of newspapers generally are liable for the publication of libelous matter, even though printed without their knowledge and even against their orders.
   
   
2. News dealers are immune from any liability for selling or displaying newspapers or magazines that contain libelous matter, providing such dealers have no knowledge of the libelous matter.
   
   
3. In order to hold the editor or proprietor of the printing plant, the injured party must prove that the libelous matter could be recognized by an intelligent person as libel. Many states recognize a limited right to "fair reportage" of matters of public record, and there are statutes which allow the publication of official matters such as testimony at a trial, regardless of ultimate truth or falsity.
   
   
4. A "public figure" cannot recover for libel unless the matter was printed with reckless disregard for the truth or falsity.

4. DEFENSES AGAINST CHARGES OF DEFAMATION.
   
   
   1. The truth of the charge is generally a complete defense against an action for damages. Statutes, however, sometimes require that not only must the words be true, but they must also be uttered in good faith.
      
      
   2. A privileged communication, such as what is said or written in a judicial proceeding or in a legitimate newspaper report thereof, is not held to be libelous matter. This privilege extends to the heads of the executive departments of government. Statements rendered by investigative agencies and the reports of many semipublic societies are also conditionally privileged.
      
      
   3. Fair comment is still another defense. The conduct of public men is held to be a proper matter for public discussion, so long as the writer keeps within the bounds of an honest intention to discharge a duty to the public, and does not make the occasion a mere cover for false allegations. The same rule applies to newspaper reports of literary or artistic productions offered to the public.

C.    FALSE IMPRISONMENT.

This is a crime, and the person unlawfully imprisoned has the right to a civil action for damages. The defense may be that the officer was clothed with the proper authority and acted upon probable cause. In a case involving parent and child, guardian and ward, or teacher and pupil, it may be shown that the alleged wrongdoer was acting within the scope of duty.

D.    MALICIOUS PROSECUTION.

Malicious instituting of suit without probable cause, and both the malice and the lack of probable cause must be proved. A suit to recover for this wrong cannot be started before the alleged malicious prosecution has come to an end. That the accused party acted on the advice of his attorney after a full and fair disclosure of the facts is a good defense against a charge of malicious prosecution. Many states recognize related torts such as "ABUSE OF PROCESS" (wrongful use of judicial process to obtain a benefit); and the more general tort, WRONGFUL USE OF CIVIL PROCEEDINGS.

E.    GOVERNMENTAL TORT: WRONGFUL SEARCH AND SEIZURE.

It is unlawful to search private premises unless a search warrant has been issued by proper authority. It is a criminal offense to open another s letters, or to retain or pry into them. The federal and state constitutions protect persons against unreasonable searches and seizures.

F.    NUISANCES/TRESPASS TO LAND OR ENJOYMENT OF LAND.

A nuisance is anything wrongfully done or permitted that injures or annoys another in the enjoyment of his legal rights. Below is a list of some of the nuisances subject to an action in tort:

1. To remove or weaken the lateral support of the adjoining land.
   
   
2. To mine or tunnel under another's land without providing suitable support.
   
   
3. To extend buildings over another's land.
   
   
4. To allow filthy deposits to accumulate on one's property.
   
   
5. To deposit refuse in a stream of water.
   
   
6. To erect a dam, backing up the water to injure the land of another.
   
   
7. To use or care for explosives, loaded weapons, or dangerous machines in a negligent manner.
   
   
8. To conduct a place of business or amusement, or engage in any activity, in a way that will materially interfere with the ordinary physical comfort of others.
   
   
9. To allow poisonous or offensive materials to remain in a place where they may cause injury to others.

G.    LIABILITY FOR ACTS OF ANIMALS.

H.    THE OWNER'S RESPONSIBILITY.

1. VICIOUS ANIMALS.

The owners of vicious animals are responsible for any injuries the animals may cause while running at large. If a dog annoys travelers on a public road by scaring horses or frightening children, the owner is responsible in damages to the injured party. The owner of a vicious bull or stallion is required to exercise the greatest care in protecting the public from injury. If a person on a social or business errand is injured by a savage animal on the premises of the owner, the owner is responsible. These rules do not apply to trespassers who know the dangerous nature of the animal.

2.    DOMESTIC ANIMALS.

The owner of domestic animals is responsible in case injury results because of his or her own negligence. On the other hand, if the animals trespass on a neighbor's land, they cannot be injured or killed by the neighbor. The neighbor has a legal remedy, however, and can collect damages.

I.    FENCELAWS.

In certain sections of the country there are open lands where cattle and other animals are allowed to graze at will. The owners of cultivated land are there required to provide their own protection against the animals. Most states, however, have stock laws providing that animals must be kept within an enclosure, and if damage results the owner of the animals is responsible.