Dr. Troy Andrade, Law Professor at the William S. Richardson School of Law, joins producer/host Coralie Chun Matayoshi to discuss legal claims called “torts” where monetary damages are sought for injuries that are intentional, negligent, or other; why Hawaii has a more expansive view of who can recover, and the evolving concept of “Act of God.”
Q. Every day we hear in the news or read in the paper various legal terms. Today we’re going to dive into a specific area of law called Torts, and no, it’s not something you eat.
What is a “tort?”
A tort is a wrongful act other than a breach of contract. It is a broad category of various claims that someone can assert when they have been injured. Area of law studied by first year law students that sets the foundation for the study of many other niche areas of law. It’s the foundation for other areas of law like insurance law, many constitutional law claims, business law claims, and environmental law claims, to name a few.
Q. Can you give me some examples of torts?
I like to tell students that there are generally two large worlds that you access when you discuss tort law claims. The key question that distinguishes between the two types of worlds is whether an actor conducted themselves with intent to cause a harm.
The first set of Tort claims fall into the world of intentional torts. These are claims where there is intentional harm causing conduct that results in injury to another. These claims include: assault; battery; false imprisonment; intentional infliction of emotional distress; trespass to land; trespass to chattel or damaging property of another; and conversion. They also include intentional economic harm, such as: intentional misrepresentation or fraud; interference with contractual relations; and interference with prospective economic advantage.
The other type of tort is negligence – that is, claims for injuries that have been against individuals who did not intend for such harm to occur. These are thus claims for unintentional conduct that results in injury.
Another set of tort claims we address straddle and incorporate principles from both the intentional and unintentional worlds. These include: strict liability; products liability; nuisance-both public and private; defamation – including libel and slander; privacy issues, such as intrusion into seclusion; commercial appropriation; public disclosure of private true facts; portrayal in a false light; and many others.
Q. Intentional torts are pretty straightforward to understand – like when you punch someone, steal from them, or try to ruin their business on purpose. How are “negligence” claims different?
“Negligence” commonly refers to conduct that breaches a standard of reasonable care and results in damage to a person or their property. It’s generally what we think of as accidents. A car accident or a slip and fall are classic examples of negligence. So, say I get into a car accident with you because I wasn’t paying attention and checking my emails on my phone while driving. I had no intent to crash my car into you, but I was doing something we as a society think I should not have been doing and I caused an injury. Therefore, I should compensate you for your injury. That’s negligence. In legal terminology, the tort of negligence consists of several distinct elements, including the existence of a duty that someone has to the injured party, the breach of that duty, an assessment of whether the conduct in fact caused the injury, whether the injury was foreseeable from that conduct, and whether there was a verified harm. Duty, Breach, Causation, and Damages. That’s how I generally tell my students to think of the elements of a negligence claim.
Q. Why do we allow people to file a lawsuit to recover monetary damages for these sorts of things?
Great question, I think there are several reasons, but the primary reason is to compensate injured parties. In my example of me driving negligently and hitting you, you were doing everything right. You were minding your own business and lawfully driving your own vehicle where you could have. You had perhaps no fault in the injuries that occurred. Without the tort system and the ability to bring these lawsuits, you may have to pay for your injuries yourself. If you can’t pay for it--say there’s no insurance either—who has to foot the bill for my conduct? It’s potentially taxpayers who may have to cover the costs of your medical bills if you can’t pay for it yourself. Another important reason we have this system is to deter this type of conduct.
Q. Is tort law the same everywhere?
Tort law does vary from jurisdiction to jurisdiction. In Hawaii we have some unique aspects to our tort law system that that is generally not found elsewhere and is anchored in Native Hawaiian cultural values and practices. For example, everywhere in the United States, there exists a claim called Negligent Infliction of Emotional Distress. This is a situation where the only harm that is suffered by an individual is severe emotional and psychological harm; so there are no physical injuries to a person. I think an example would be helpful. Let’s say my son and I are crossing a busy intersection and as we’re crossing, I get hit by a car. My son sees everything and is an emotional wreck because of it, but he doesn’t get physically hurt. I can sue the car driver for my physical injuries. The question is whether my son can successfully sue the car driver for his emotional injury. The law in most states is that my son could sue and be successful because:
(1) my son was located near the scene of the accident; (2) the shock resulted from a direct impact to me from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) my son and I had a closely familial relationship.
It’s this last factor—the close familial relationship—that has made this a particularly narrower claim. It limits who can recover. So, you can only get emotional distress support in these situations if you have a close familial relationship. Hawaii has a unique and expansive view of who is able to recover and who is part of this familial relationship. Outside of Hawaii you need to show an actual blood or marital relationship between the victim and the injured party. But, in an opinion authored by Chief Justice William Richardson and incorporating the traditional Hawaiian concept of hanai and ‘ohana, the Hawaii Supreme Court in the case Leong v. Takasaki allowed a child to recover for Negligent Infliction of Emotion Distress under a bystander theory when he witnessed his step grandmother being hit by a vehicle. Adopting the broader and indigenous view of family into the law, Hawaii took a more expansive view of who would be able to recover.
Q. You mentioned two types of tort - intentional or unintentional (negligence). What is strict liability?
There are other claims, like strict liability, which straddle both intentional and unintentional torts principles. A classic example is if someone owns a wild animal, say a tiger, they will be held liable for all of the consequences that come about because of that tiger regardless of how many precautions they took to prevent that tiger from causing harm. Also, sometimes negligence claims cannot be proven. Generally, those cases are truly accidents where no one was at fault.
Q. What if something happens that’s nobody’s fault – i.e. an “Act of God”. Can you explain what that means?
Sure. So an “act of god” is a severe, often unanticipated natural event for which the law generally says that no human is responsible. As an example, we now have hurricane insurance that covers property damage if a hurricane—which is a severe harm causing natural disaster destroys property—but that is an “act of god”. Prior to hurricane insurance, an insurance company may have been able to say that they didn’t cover those damages because that was an “act of god” that no one could have predicted. Sometimes, particularly in contract law, people will include what’s called a force majeure clause which basically says that contractual obligations may not need to be satisfied when acts of god are shown.
I would note though that with all the advancements in technology and knowledge, it is actually a little easier to connect some phenomena to particular conduct and actors. I’m thinking specifically about the efforts to demonstrate and scientifically prove the cause of climate change and sea level rise, which is more and more being connected to specific industries, actors, and conduct. Recently, for example, there have been lawsuits filed against oil companies for their alleged contribution to carbon emissions into the atmosphere. There is even a case in the international courts that is being filed by a small island country looking to assess the obligations that larger countries have for their contributions to global warming. These lawsuits claim the company’s and larger countries’ carbon emissions led to hotter atmospheric temperatures and global warming, which contributes to changing weather patterns and melting of the polar ice caps, which cause sea level rise. There are so many fun and relevant issues relating to tort law.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.