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| TORTS |
"Torts" are not your mother's strawberry shortcake. A tort is a violation of a duty which
proximately causes harm. It has four essential elements, 1) a duty, 2) a violation of that duty,
3) causation and 4) damage. If any one of the four element is missing, there is no case.
There are basically two types of torts, torts of negligence and intentional torts. A person who
commits a tort is called a "tortfeasor." The victim of a tort is the person who was harmed,
a/k/a plaintiff. Negligence is just another word for carelessness. It is an absence of ordinary
care. It is the standard by which a reasonably prudent person conducts himself under the
circumstances. A person cannot be negligent on purpose. If something is done or not done
on purpose, then it is intentional. While there may be only two basic types of torts, they
come in a huge variety flavors and encompass almost every aspect of human behavior. This
page will list just a few of them. The key to most cases, what the case is really about, is the
phrase you will find that runs through out each of the torts described below, namely the
"causes harm" part. Torts are more about the effects of the defendant's conduct on the
plaintiff than anything else.
Motor Vehicle Collisions: When one driver violates any of the statutory Rules of the Road,
he violates a duty imposed by law. Most car crashes are caused by driving too fast for
conditions, speeding, following too closely, failing to yield the right of way or failing to keep a
proper look out. Only demolition derby drivers and stunt drivers get in wrecks on purpose.
The rest of us try our best to avoid them, yet they happen all the time. It is a rare collision
that is not caused by human negligence.
Slips & Falls: The owner or occupier of premises is not an insuror of the safety of all persons
who enter upon his premises. The duty owed by an owner or occupier of land depends on
the classification of the person who is on his land or in his building. If the person was invited
to come upon the premises for any lawful purposes, then he is an invitee. The owner owes a
duty to exercise ordinary care in keeping the premises and approaches safe. He is not
automatically, or strictly, liable for injuries that happen on his land or in his building. In a
nutshell, he has a duty either to warn his invitees of a dangerous condition ("wet floor") or to
make it safe. Where the person is merely a licensee, such as a social guest in a private
home or a repairman there to fix something, the owner owes a duty not to inflict harm wilfully
or wantonly. With some exceptions, the owner owes no duty to trespassers.
Professional Malpractice: All professionals have a duty to exercise that degree of care and
skill generally employed by people like him under similar circumstances and like surrounding
conditions. In other words, a professional must act like a reasonably prudent person, just like
everyone else. The question of what is reasonably prudent under the circumstances is
called the "standard of care." All professionals spent years acquiring specialized knowledge.
People who do not possess that specialized knowledge have no clue what is or is not
reasonably prudent under a given set of circumstances. Thus only a person who possesses
that specialized knowledge can say what the standard of care is. A lawyer cannot criticize a
doctor, just as a doctor cannot criticize an engineer. A patent attorney cannot criticize a trial
lawyer just as a foot doctor cannot criticize a brain surgeon. As with any human activity, the
state of current knowledge changes over time, so a professional also has a duty to keep up
with new developments in his field. What may have been prudent conduct yesterday could
be negligent conduct today.
Thanks to 1980's tort reform, there is a list of 26 professionals who receive a special
protection not afforded to other professionals, namely a requirement that the plaintiff have
attached to the complaint an affidavit pointing out at least one negligent act or omission by
the defendant. The failure to have that affidavit attached gets the lawsuit dismissed
automatically. Thanks to tort reform (Senate Bill 3) signed into law by Governor Purdue in
2005, that affidavit cannot be signed by just any professional of the same variety as the
defendant, but the expert witness must now meet fairly strenuous requirements originally set
forth by a decision of the United States Supreme Court which had applied only in federal
cases. These requirements are popularly known as "Daubert." The Georgia Supreme Court
recently upheld the application of Daubert requirements to experts in civil cases in a
constitutional challenge on equal protection grounds. The argument was that experts in civil
cases ought not be held to more rigorous requirements than experts in criminal cases. As
Georgia law now stands, a criminal defendant can be convicted of a crime on the basis of
testimony from a professional which would not be admitted in a civil trial involving the same
subject.
Unlike almost all other types of civil trials, the trial of a legal malpractice case is actually the
trial of two cases. First, the plaintiff must prove that the lawyer was negligent. Like any other
tort plaintiff, he must prove that the defendant's negligence caused harm. The only way to
do this is to convince a jury that the plaintiff would have won the case the lawyer botched,
which simply means that the underlying case has to be tried in the malpractice trial against
the lawyer. In other words, the plaintiff has to prove that he would have gotten the relief to
which he contends he was entitled if the lawyer had not been negligent.
In a medical malpractice trial, just like any other claimant, the plaintiff has to prove that the
defendant's negligence caused harm, but in a medical setting, it takes specialized knowledge
to know whether the harm alleged by the plaintiff to have been caused by the defendant's
negligence was just a natural consequence or symptom of the underlying disease, or
whether that condition is something new and unrelated to anything the defendant doctor did
or did not do. In other words, in most cases causation of harm has to be proved by medical
testimony.
Defamation: A defamatory statement is an unprivileged false statement about the plaintiff
made by the defendant to a third party that causes harm. If the statement is written, it is
libel. If it is oral, it is slander. There is a presumption of harm from the mere utterance of a
three kinds of false statements, namely 1) imputing to another a crime punishable by law, 2)
charging a person with having some contagious disorder or with being guilty of some
debasing act which may exclude him from society, 3) making charges against another in
reference to his trade, office or profession, which is calculated to injure him therein. In
addition to these three kinds of statements, the utterance of any disparaging words, which
the evidence proves caused the plaintiff to suffer a financial loss, is defamatory.
In defamation cases, the standards are different for the press because of the freedom of the
press guaranteed by the first amendment to the United States Constitution. For a non-press
defendant, malice is inferred from the nature of the false statement, but for the press that
malice must be proved, not inferred. For a non-press defendant, it is the mere utterance of
the statement that counts, whereas for the press, the plaintiff must show that the defendant
acted with a reckless disregard of the truth (negligence).
A person who is a public figure must prove actual malice by the press, not merely a reckless
disregard of the truth; otherwise the public figure's remedy is not a lawsuit for damages, but
to hold his own press conference. A general purpose public figure is any person whose
name is known to everyone. A limited purpose public figure is a person whose name is
known only to people who follow a particular subject.
Truth, of course, is the ultimate defense to a claim of defamation. Some statements made
to certain people who need to know are privileged, so no matter how false or malicious, there
can be no recovery.
Fraud and Deceit: A willful misrepresentation of a material fact, made to induce another to
act, upon which such person acts to his injury, is fraud and deceit. Mere concealment of a
material fact, unless done in such a manner as to deceive and mislead, is not fraud or
deceit. In all cases of deceit, knowledge of the falsehood constitutes an essential element of
the tort. A fraudulent or reckless representation of facts as true when they are not, if
intended to deceive, is equivalent to knowledge of their falsehood even if the party making
the representation does not know that such facts are false. Fraud may be committed by acts
as well as words.
Fraud may be actual or constructive. Actual fraud consists of any method by which
another is deceived. Constructive fraud consists of any act done (or not done which should
have been done), contrary to legal or equitable duty, trust, or confidence, upon which
another person relies to the injury of that person. Actual fraud implies moral guilt, while
constructive fraud may be consistent with innocence.
Fraud may not be presumed, but slight circumstances may be enough to prove its
existence.
To prove fraud, the following elements are required:
a. A false representation;
b. Intent to deceive;
c. An intention to induce the plaintiff to act or refrain from acting in reliance on the
false representation;
d. Justifiable reliance by the plaintiff on the false representation; and
e. Damage to the plaintiff.
Since fraud is inherently subtle, slight circumstances of fraud may be sufficient to prove
its existence. Proof of fraud is seldom if ever susceptible of direct proof, thus recourse to
circumstantial evidence is usually required.
False Arrest, False Imprisonment, Malicious Prosecution and Abusive Litigation:
An arrest under process of law, without probable cause, when made maliciously, is a false
arrest. In this sense malice consists in either personal spite or in a general disregard of the
right consideration of mankind, directed by chance against the individual. If a person is
arrested and does not bond himself out on bail, he is entitled to a hearing in court to
determine the probable cause for his arrest. If probable cause is found at that hearing, there
can be no cause of action for the tort of false arrest.
False imprisonment is the unlawful detention of the person of another for any length of time
whereby such person is deprived of his liberty. The most common false imprisonment occurs
in the context of shoplifting. There is, however, a law that gives some latitude for a
shopkeeper to detain a person lawfully.
A criminal prosecution carried on maliciously and without probable cause and which causes
harm is a malicious prosecution entitling the person prosecuted to damages. Obviously, the
person being prosecuted has to beat the charges and be discharged of criminal liability (i.e. -
be found not guilty, have the charges dismissed, win a motion to suppress, etc.)
Abusive litigation is a fairly new cause of action. There are two prerequisites. First the
future plaintiff must send a "kiss & make up" letter to his opponent in which he identifies what
he thinks is abusive litigation and giving the opponent a chance to stop. If the opponent
pushes onwards, then the next requirement is that the future plaintiff must win whatever
litigation was identified as abusive. Abusive litigation is any case, position, motion, claim, or
contention raised in a civil case with malice and without substantial justification.
Tort Reform: If you believe in "tort reform", then the courts are hopelessly clogged with
tort suits brought by malingering fakers and greedy, shyster lawyers who are hoping to strike
it rich playing the litigation lottery at the expense of American business, which is so heavily
burdened with torts suit that it cannot compete internationally, which is driving businesses out
of America. If you believe in tort reform, then all the judges are creating new laws to make it
easier for out of control juries to render ever larger sums of money which are forcing
insurance companies to raise premiums and driving doctors out of business, to the detriment
of everyone. The sole object of all ideas labeled "tort reform" is to make it harder for a
plaintiff to obtain just, reasonable and fair compensation for the harm done to him by a
defendant. Needless to say, the Law Office of Vincent D. Sowerby, P.C. opposes "tort
reform", and believes that the playing field between plaintiffs and defendants ought to be
level with both sides having equal rights and opportunities. Our system of justice is balanced
evenly and does not need to be unbalanced. For every right, there is a remedy. Everyone,
regardless of wealth, creed or popularity, is entitled to his day in court, no matter whether he
is a plaintiff or a defendant, both of whom must always be subject to the same rules. It is not
fair to give defendants an advantage, yet that is exactly what "tort reform" does. It has been
said that tort reform is the government taking away David's sling and giving it to Goliath. This
statement is true only where a tortfeasor is insured.
Damages: No discussion of torts would be complete without mentioning damages. Because
this subject is so important, it gets it's own page on this site.
proximately causes harm. It has four essential elements, 1) a duty, 2) a violation of that duty,
3) causation and 4) damage. If any one of the four element is missing, there is no case.
There are basically two types of torts, torts of negligence and intentional torts. A person who
commits a tort is called a "tortfeasor." The victim of a tort is the person who was harmed,
a/k/a plaintiff. Negligence is just another word for carelessness. It is an absence of ordinary
care. It is the standard by which a reasonably prudent person conducts himself under the
circumstances. A person cannot be negligent on purpose. If something is done or not done
on purpose, then it is intentional. While there may be only two basic types of torts, they
come in a huge variety flavors and encompass almost every aspect of human behavior. This
page will list just a few of them. The key to most cases, what the case is really about, is the
phrase you will find that runs through out each of the torts described below, namely the
"causes harm" part. Torts are more about the effects of the defendant's conduct on the
plaintiff than anything else.
Motor Vehicle Collisions: When one driver violates any of the statutory Rules of the Road,
he violates a duty imposed by law. Most car crashes are caused by driving too fast for
conditions, speeding, following too closely, failing to yield the right of way or failing to keep a
proper look out. Only demolition derby drivers and stunt drivers get in wrecks on purpose.
The rest of us try our best to avoid them, yet they happen all the time. It is a rare collision
that is not caused by human negligence.
Slips & Falls: The owner or occupier of premises is not an insuror of the safety of all persons
who enter upon his premises. The duty owed by an owner or occupier of land depends on
the classification of the person who is on his land or in his building. If the person was invited
to come upon the premises for any lawful purposes, then he is an invitee. The owner owes a
duty to exercise ordinary care in keeping the premises and approaches safe. He is not
automatically, or strictly, liable for injuries that happen on his land or in his building. In a
nutshell, he has a duty either to warn his invitees of a dangerous condition ("wet floor") or to
make it safe. Where the person is merely a licensee, such as a social guest in a private
home or a repairman there to fix something, the owner owes a duty not to inflict harm wilfully
or wantonly. With some exceptions, the owner owes no duty to trespassers.
Professional Malpractice: All professionals have a duty to exercise that degree of care and
skill generally employed by people like him under similar circumstances and like surrounding
conditions. In other words, a professional must act like a reasonably prudent person, just like
everyone else. The question of what is reasonably prudent under the circumstances is
called the "standard of care." All professionals spent years acquiring specialized knowledge.
People who do not possess that specialized knowledge have no clue what is or is not
reasonably prudent under a given set of circumstances. Thus only a person who possesses
that specialized knowledge can say what the standard of care is. A lawyer cannot criticize a
doctor, just as a doctor cannot criticize an engineer. A patent attorney cannot criticize a trial
lawyer just as a foot doctor cannot criticize a brain surgeon. As with any human activity, the
state of current knowledge changes over time, so a professional also has a duty to keep up
with new developments in his field. What may have been prudent conduct yesterday could
be negligent conduct today.
Thanks to 1980's tort reform, there is a list of 26 professionals who receive a special
protection not afforded to other professionals, namely a requirement that the plaintiff have
attached to the complaint an affidavit pointing out at least one negligent act or omission by
the defendant. The failure to have that affidavit attached gets the lawsuit dismissed
automatically. Thanks to tort reform (Senate Bill 3) signed into law by Governor Purdue in
2005, that affidavit cannot be signed by just any professional of the same variety as the
defendant, but the expert witness must now meet fairly strenuous requirements originally set
forth by a decision of the United States Supreme Court which had applied only in federal
cases. These requirements are popularly known as "Daubert." The Georgia Supreme Court
recently upheld the application of Daubert requirements to experts in civil cases in a
constitutional challenge on equal protection grounds. The argument was that experts in civil
cases ought not be held to more rigorous requirements than experts in criminal cases. As
Georgia law now stands, a criminal defendant can be convicted of a crime on the basis of
testimony from a professional which would not be admitted in a civil trial involving the same
subject.
Unlike almost all other types of civil trials, the trial of a legal malpractice case is actually the
trial of two cases. First, the plaintiff must prove that the lawyer was negligent. Like any other
tort plaintiff, he must prove that the defendant's negligence caused harm. The only way to
do this is to convince a jury that the plaintiff would have won the case the lawyer botched,
which simply means that the underlying case has to be tried in the malpractice trial against
the lawyer. In other words, the plaintiff has to prove that he would have gotten the relief to
which he contends he was entitled if the lawyer had not been negligent.
In a medical malpractice trial, just like any other claimant, the plaintiff has to prove that the
defendant's negligence caused harm, but in a medical setting, it takes specialized knowledge
to know whether the harm alleged by the plaintiff to have been caused by the defendant's
negligence was just a natural consequence or symptom of the underlying disease, or
whether that condition is something new and unrelated to anything the defendant doctor did
or did not do. In other words, in most cases causation of harm has to be proved by medical
testimony.
Defamation: A defamatory statement is an unprivileged false statement about the plaintiff
made by the defendant to a third party that causes harm. If the statement is written, it is
libel. If it is oral, it is slander. There is a presumption of harm from the mere utterance of a
three kinds of false statements, namely 1) imputing to another a crime punishable by law, 2)
charging a person with having some contagious disorder or with being guilty of some
debasing act which may exclude him from society, 3) making charges against another in
reference to his trade, office or profession, which is calculated to injure him therein. In
addition to these three kinds of statements, the utterance of any disparaging words, which
the evidence proves caused the plaintiff to suffer a financial loss, is defamatory.
In defamation cases, the standards are different for the press because of the freedom of the
press guaranteed by the first amendment to the United States Constitution. For a non-press
defendant, malice is inferred from the nature of the false statement, but for the press that
malice must be proved, not inferred. For a non-press defendant, it is the mere utterance of
the statement that counts, whereas for the press, the plaintiff must show that the defendant
acted with a reckless disregard of the truth (negligence).
A person who is a public figure must prove actual malice by the press, not merely a reckless
disregard of the truth; otherwise the public figure's remedy is not a lawsuit for damages, but
to hold his own press conference. A general purpose public figure is any person whose
name is known to everyone. A limited purpose public figure is a person whose name is
known only to people who follow a particular subject.
Truth, of course, is the ultimate defense to a claim of defamation. Some statements made
to certain people who need to know are privileged, so no matter how false or malicious, there
can be no recovery.
Fraud and Deceit: A willful misrepresentation of a material fact, made to induce another to
act, upon which such person acts to his injury, is fraud and deceit. Mere concealment of a
material fact, unless done in such a manner as to deceive and mislead, is not fraud or
deceit. In all cases of deceit, knowledge of the falsehood constitutes an essential element of
the tort. A fraudulent or reckless representation of facts as true when they are not, if
intended to deceive, is equivalent to knowledge of their falsehood even if the party making
the representation does not know that such facts are false. Fraud may be committed by acts
as well as words.
Fraud may be actual or constructive. Actual fraud consists of any method by which
another is deceived. Constructive fraud consists of any act done (or not done which should
have been done), contrary to legal or equitable duty, trust, or confidence, upon which
another person relies to the injury of that person. Actual fraud implies moral guilt, while
constructive fraud may be consistent with innocence.
Fraud may not be presumed, but slight circumstances may be enough to prove its
existence.
To prove fraud, the following elements are required:
a. A false representation;
b. Intent to deceive;
c. An intention to induce the plaintiff to act or refrain from acting in reliance on the
false representation;
d. Justifiable reliance by the plaintiff on the false representation; and
e. Damage to the plaintiff.
Since fraud is inherently subtle, slight circumstances of fraud may be sufficient to prove
its existence. Proof of fraud is seldom if ever susceptible of direct proof, thus recourse to
circumstantial evidence is usually required.
False Arrest, False Imprisonment, Malicious Prosecution and Abusive Litigation:
An arrest under process of law, without probable cause, when made maliciously, is a false
arrest. In this sense malice consists in either personal spite or in a general disregard of the
right consideration of mankind, directed by chance against the individual. If a person is
arrested and does not bond himself out on bail, he is entitled to a hearing in court to
determine the probable cause for his arrest. If probable cause is found at that hearing, there
can be no cause of action for the tort of false arrest.
False imprisonment is the unlawful detention of the person of another for any length of time
whereby such person is deprived of his liberty. The most common false imprisonment occurs
in the context of shoplifting. There is, however, a law that gives some latitude for a
shopkeeper to detain a person lawfully.
A criminal prosecution carried on maliciously and without probable cause and which causes
harm is a malicious prosecution entitling the person prosecuted to damages. Obviously, the
person being prosecuted has to beat the charges and be discharged of criminal liability (i.e. -
be found not guilty, have the charges dismissed, win a motion to suppress, etc.)
Abusive litigation is a fairly new cause of action. There are two prerequisites. First the
future plaintiff must send a "kiss & make up" letter to his opponent in which he identifies what
he thinks is abusive litigation and giving the opponent a chance to stop. If the opponent
pushes onwards, then the next requirement is that the future plaintiff must win whatever
litigation was identified as abusive. Abusive litigation is any case, position, motion, claim, or
contention raised in a civil case with malice and without substantial justification.
Tort Reform: If you believe in "tort reform", then the courts are hopelessly clogged with
tort suits brought by malingering fakers and greedy, shyster lawyers who are hoping to strike
it rich playing the litigation lottery at the expense of American business, which is so heavily
burdened with torts suit that it cannot compete internationally, which is driving businesses out
of America. If you believe in tort reform, then all the judges are creating new laws to make it
easier for out of control juries to render ever larger sums of money which are forcing
insurance companies to raise premiums and driving doctors out of business, to the detriment
of everyone. The sole object of all ideas labeled "tort reform" is to make it harder for a
plaintiff to obtain just, reasonable and fair compensation for the harm done to him by a
defendant. Needless to say, the Law Office of Vincent D. Sowerby, P.C. opposes "tort
reform", and believes that the playing field between plaintiffs and defendants ought to be
level with both sides having equal rights and opportunities. Our system of justice is balanced
evenly and does not need to be unbalanced. For every right, there is a remedy. Everyone,
regardless of wealth, creed or popularity, is entitled to his day in court, no matter whether he
is a plaintiff or a defendant, both of whom must always be subject to the same rules. It is not
fair to give defendants an advantage, yet that is exactly what "tort reform" does. It has been
said that tort reform is the government taking away David's sling and giving it to Goliath. This
statement is true only where a tortfeasor is insured.
Damages: No discussion of torts would be complete without mentioning damages. Because
this subject is so important, it gets it's own page on this site.