tort is a civil wrong, Intentional mental distress:GAL

A TORT IS A CIVIL WRONG.

Tort law is part of civil (noncriminal) law. It concerns lawsuits (not prosecutions). These suits arise from injuries (wrongs) committed by one person, a group, or organization(s) against another or others. Torts can be intentional or not. They can be purposeful or negligent.

Here's what happens. You get hurt. Or,

someone treats you badly or unfairly. You want to "sue the bastards." Tort law answers the question: Is there someone to sue? Or, putting it in legalese, is there a remedy for every tort? Torts deal with civil lawsuits, excluding breaches of contract (K's). While torts are not part of criminal law, remember that the same action by


a defendant (D) can bring about both a criminal prosecution and a civil lawsuit.


For example, if Bill steals your TV, that's the crime of theft. It is also the tort of conversion. The district attorney can prosecute for the theft. You can sue for the conversion. Bill is the tort-feasor (doer of the tort!). With this as background, what are some torts?


Please refer to the following website:
Tort-Law: An Introduction

(http://www.findlaw.com/01topics/22tort/)


TYPES OF TORTS

Torts are divided into basic types:


1. Negligence
2. Intentional harm to a person
3. Intentional harm to tangible property
4. Strict liability
5. Nuisance
6. Harm to economic interests
7. Harm to intangible property interests

1. NEGLIGENCE

Negligence includes car accidents, slip-and-fall cases, malpractice, personal injury, and some product liability cases. The variety of negligence is very wide, and new torts are created all the time. While it is a common word, negligence has legal meaning. What is it? How does negligence become a tort? We start from the idea that negligence is carelessness, not being reasonable, et cetera. Here's how a tort in negligence is analyzed.


Every tort has three elements:


A. The D owes a legal duty to the plaintiff (P).

B. The D breaches that duty.

C. The breach causes injury either as a direct result of the negligent act or somewhat more indirectly, but foreseeable; that is, the injury was reasonably predictable following the negligent act.

Legally, we say there is a proximate cause between the breach and the injury.


These look like simple words-not too technical. But let's define what they mean in this context. First, what is a duty? One person's obligation to another. Duty is based on the relationship of the people involved. For example:


employer and employee;

innkeeper and guest;

business person/owner and customer;

host and social visitor;

manufacturer and consumer;

property owner and licensee, guest, trespasser, or trespasser who is younger than twelve years old

person in control of an instrument that can harm (e.g., a car) and a passenger or pedestrian or fellow driver.


All these cases have a different standard of care, of duty. It's different if the mailman slips on your steps or if a trespasser does. But, basically, the duty is to act reasonably. What is reasonable? (Ah, the sixty-four-thousand dollar question!)


Reasonable conduct:


An important concept in tort law but, as you can imagine, hard for P and D to agree upon. Lawyers use the "reasonable person standard". What would a reasonable person do? Note: You generally don't have a duty to a stranger. Thus, as harsh as it may be, if you see a stranger in serious trouble, you don't have a duty to help. However, laws are changing in this field. In fact, if you help, you better be reasonable! Because, by helping, you assume a duty!


Good Samaritan statutes:


Because it seems harsh to let doctors, nurses, and other medical professionals go about their way without helping strangers in distress, many states have enacted Good Samaritan statutes. The name comes from the Bible. These laws protect from lawsuit doctors and other medical professionals who aid an injured stranger in an emergency at the scene of an accident or injury. The duty of reasonable care does not apply. In such a case the P can sue the doctor (D) only if he was reckless or grossly negligent.


The reasonable person standard is an objective, not subjective, standard. A jury can decide if you were reasonable. "I was doing the best I could" or "I thought I was being reasonable" is not defenses if they do not meet the community's reasonableness standard. Standards are applied to the type of person you are. A reasonable adult. A reasonable lawyer. A reasonable scientist or shopkeeper. Persons with greater knowledge are held to a higher standard. The reasonableness standard does not apply to children unless they are doing adult activities. Thus, if a sixteen-year-old drives a car, he had better be reasonable.


These standards change all the time. For example, right now the community's standard for drinking and driving is changing dramatically in this country. It used to be viewed as almost funny; now, you'd better not do it, you'd better have a "designated driver" if you're planning to go out and drink, and on and on. All these new standards are being applied differently than they were twenty or even ten years ago. Next, what is a breach? It is a failure to act reasonably; a failure to use the amount of care a reasonable person would use in that situation.


Negligence occurs if you do something below the standard of what a reasonable person would do in those circumstances. What's the measure? A community standard or statute. Let's say that you are careless with someone to whom you owe a duty. Is that a tort? Not necessarily. Not unless the person is hurt by your negligence. If no one got hurt, you got lucky! Finally, what is causation? Something that causes something else. To figure out if there is the required causation in your case, you have to analyze it in several steps.


1. You have to prove a "but for" relation between the breach of duty and the injury. But for the breach, there would be no injury. For example, the floor in the store is slippery. You fall on it and break a bone. The slippery floor probably caused your fall.


If P gets hurt but the injury was not caused by D's action, then there is no tort. For example, you are in the store with your child. He runs away from you. You run after him and fall and break a bone. The floor was not slippery. The floor probably did not cause your fall. Probably no negligence on the store's part.


2. The injury has to be the direct result of the negligent act or of foreseeable intervening forces. The injury has to be caused proximately by the breach of duty. This means it has to be reasonably anticipated that if someone does X, someone can get hurt. If you drive and drink, you may cause an injury. If there is a banana peel on the floor in the store, someone may fall, et cetera. This is the proximate cause requirement.


If something else happens between the breach and the injury, it's hard to prove that the breach caused the injury. For example, if your neighbor takes down a wall and water comes into your basement as a result, it may be a tort. But if water doesn't come in for five years, it's hard to prove proximate cause because so many other things intervened during the five years. Or if there is an unusual flood up the street at the time the wall was removed, your neighbor may be able to prove that it was the flood, not the wall that caused the water in your basement. That might be what's termed "an act of God." Then you have no one to sue!


Other important terms in negligence torts:


Invitee: Someone you have, expressly or by implication, invited to your property. He may be a customer, servant, and friend. Generally, you are responsible for exercising reasonable care for his safety against latent defects on that part of your property to which he was invited. In addition you have a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe.


For example, in a store, invitees can come into the selling area but not the back, which is posted "FOR EMPLOYEES ONLY." There they would be trespassers.


Licensee: A person who comes onto your property with permission, but without invitation. Such a person has a right to be there but is there for his benefit, not yours: for example, a door-to-door salesman.


In the old common law you owed these folks less duty of care. Now, by statute in many states, the duty is the same as for invitees.


Trespasser: Someone on your property without invitation or license; someone who commits a trespass on your property. Generally, you owe him less care than an invitee or licensee but will be responsible for conduct that is grossly negligent. Thus you can't set an unmarked trap or leave a large unprotected hole on your property.


An exception is for children under twelve years old. You may be held responsible in their case for maintaining an attractive nuisance – as dangerous "artificial condition" on your property that a child may play on. If the child gets hurt, you may be liable, even if he is trespassing. For example, a swimming pool with an open gate or no fence at all. On the other hand, a tree the child climbs is probably not an "artificial condition," and you'd probably not be liable for an injury.


Res ipsa loquitur: Lovely Latin term to keep in your back pocket just for fun! Literally, this doctrine means, "the thing (res) speaks (loquitur) for itself (ipsa). " It's used in trying to prove that the D was negligent. Here, one can infer negligence without actually proving it, if (a) the accident would not have happened without negligence and (b) the D had exclusive control of the thing that injured the P. If the doctrine applies, the P has made a prima facie case and the jury cannot give a directed verdict for the D


Product liability: A manufacturer and seller of a defective product may be liable in negligence. In some cases they are liable also in strict liability.


Now for the other types of torts:


2. INTENTIONAL HARM TO A PERSON


A. Assault: The D intends to hurt or scare the P and the P believes he is in danger of being hurt at that moment.


If I point a gun at you and it scares you, that's an assault, even if it turns out to be a toy gun.


If I say, "Don't you ever do that again or I'll kill you," that is not an assault: words alone don't do it. Here there is no immediate threat of harm.


In an assault the D does not need to touch the P.


B. Battery: The D intends to offensively touch or hurt the P without the P's consent, and does so.


Even if the P is asleep, and the D offensively touches him, that's a battery - because it was without consent.


When you sign a medical release before surgery, you are, in effect, consenting to the doctor's touching you. If he does the surgery to which you consented, that's not a battery. If he does more or different surgery that may be a battery-because he went beyond the scope of consent. Complicated, isn't it?


C. False imprisonment: The D intends to keep the P from freely moving about in an area that the P can't leave. If I'm driving my car with you in it, and you want to get out, and I don't stop, that may be false imprisonment. An intentional tort.


If a storekeeper keeps me on the suspicion of shoplifting but the suspicion was unreasonable, that may be false imprisonment.


D. Intentional mental distress: The D intentionally or recklessly causes P severe emotional distress.


If I know you are petrified of snakes and I leave one in your desk, that may be grounds for a suit based on intentional infliction of emotional/mental distress.


3. INTENTIONAL HARM TO TANGIBLE PROPERTY


A. Trespass to land: An intrusion by D onto P's land. No harm or intent needs to be proven. For example, if your neighbor builds a fence but it happens to sit on part of your property that’s a trespass, even if he did it unintentionally.


B. Trespass to chattels: The D interferes with P's right to possess his property. For example, the D takes P's property, uses it, perhaps damages it.


C. Conversion: An act that interferes with the owner's use of his property. Basically, it's the tort version of the crime of theft or destruction of property, which is serious enough so that the D should pay its full value to the P.


4. STRICT LIABILITY


If injured, the P does not need to prove any negligence on the D's part. With products he must prove that the product was not safe for its intended use and that he was injured by it. The duty to warn is often applied to potentially dangerous products. For example, crashworthiness of cars; hazards and side effects of medications. This is why cigarettes have warning labels. Even ladders now have warning signs on them! Are the products safe for their intended use?


Ultra hazardous activity: Owning certain types of animals, or engaging in certain types of activities. For example, firearms, if not commonly fired in the particular community or area. If anyone gets hurt, the D may be liable, even if he was not negligent.


5. NUISANCE


The D unreasonably interferes with the P's enjoyment of his property. This is where the neighbor's noisy parties come in! Or unsavory odors. Or flights overhead. Courts balance the type of area you are in, the nature of the harm, and the social value/utility of that activity. Airplanes must fly but parties can be quieter.


6. HARM TO ECONOMIC INTERESTS


A. Deceit:


Occurs if the D knowingly lies about an important fact that he intends to induce the P to rely on and which, in fact, the P does rely on. For example, right before trying to sell his house, the D patches over evidence of major water damage so that potential buyers can't see the damage.


B. Negligent misrepresentation:


It's like deceit, but applies to people in their trade or business or profession. It occurs if the D negligently provides false information to the P, a customer, on which the P relies to his detriment.


C. Interference with contractual relationships:


The D intentionally interferes with an ongoing business relationship between the P and someone else (the third party).


D. Intentional interference with advantageous relations:


The D interferes through tortious means (duress, fraud) where he had no business being in the first place. For example, the D fraudulently induces a change in a testator's will in which the P was to be a beneficiary.


7. HARM TO INTANGIBLE PROPERTY INTERESTS


A. Defamation: Occurs if D communicates information about P to others which is not truthful and hurts the P’s reputation. If the D was negligent, in not doing enough research or background checks, he may be liable.


Libel: If the defamation occurs in writing.


Slander: If the defamation is spoken. With famous people, public officials, or other people in the "public domain," only defamation done with malice (ill will) may be a tort.


B. Malicious prosecution:


If the P starts a criminal prosecution against the D without probable cause and with malice and the D wins, he may turn around and sue the P for malicious prosecution.


C. Invasion of privacy:


A wrongful intrusion into a person's private life, whether by others or by the government. For example, such an invasion may occur if unreasonable publicity is given to someone's private life. "It's not anyone else's business!" If someone takes your name or uses your picture without permission, especially for commercial use, that may be such an invasion.


Computers have brought the issue of the right to privacy to the fore: How much may government, industry, and other institutions lawfully know about us?


And there you have them: many of the major torts that exist in the early 21st century. Stay tuned as new ones emerge to meet changing social, economic, and personal needs. The law is ever changing and organic.

 

 

Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your ow

Laches (equity)

Laches (equity)

Laches (pronounced /ˈlætʃɨz/) (f. French, lâchesse, lâches) [1] is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights," and that, as a result of this delay, that other party is no longer entitled to its original claim. Put another way, failure to assert one’s rights in a timely manner can result in a claim's being barred by laches. Laches is a form of estoppel for delay. In Latin,

Vigilantibus non dormientibus æquitas subvenit.

Equity aids the vigilant, not the sleeping ones (that is, those who sleep on their rights).

In most contexts, an essential element of laches is the requirement that the party invoking the doctrine has changed its position as a result of the delay. In other words, the defendant is in a worse position now than at the time the claim should have been brought. For example, the delay in asserting the claim may have caused a great increase in the potential damages to be awarded, or assets that could earlier have been used to satisfy the claim may have been distributed in the meantime, or the property in question may already have been sold, or evidence or testimony may no longer be available to defend against the claim.

A defense lawyer raising the defense of laches against a motion for injunctive relief (a form of equitable relief) might argue that the plaintiff comes "waltzing in at the eleventh hour" when it is now too late to grant the relief sought, at least not without causing great harm that the plaintiff could have avoided. In certain types of cases (for example, cases involving time-sensitive matters, such as elections), a delay of even a few days is likely to be met with a defense of laches, even where the applicable statute of limitations might allow the type of action to be commenced within a much longer time period.

A successful defense of laches will find the court denying the request for equitable relief. However, even if equitable relief is not available, the party may still have an action at law if the statute of limitations has not run out.

Under the United States Federal Rules of Civil Procedure, laches is an affirmative defense, which means that the burden of asserting laches is on the party responding to the claim to which it applies. “When the defense of laches is clear on the face of the complaint, and where it is clear that the plaintiff can prove no set of facts to avoid the insuperable bar, a court may consider the defense on a motion to dismiss.” Solow v. Nine West Group, 2001 WL 736794, *3 (S.D.N.Y. June 29, 2001); Simons v. United States, 452 F.2d 1110, 1116 (2d Cir. 1971) (affirming Rule 12(b)(6) dismissal based, in part, on laches where papers “reveal no reason for the inordinate and prejudicial delay”)

Compared to statute of limitations

The defense of laches resembles, but is not entirely analogous to, a plea that the period of time allowed under a statute of limitations has expired. Laches essentially alleges prejudicial delay and unfairness in the context of a particular situation, whereas statutes of limitation tend to define a specific legally prescribed period of time (after the cause of action has accrued) within which a lawsuit for a particular type of cause of action may be commenced or after which the right to recovery is barred. Moreover, although a lawsuit commenced within the time allowed by a limitations period is valid no matter how long it takes for the action to proceed to trial, laches can sometimes be applied even in a situation where a lawsuit has been commenced and any delays would otherwise be reasonable. It is generally allowed by a court when a defendant could reasonably have believed that the plaintiff was not going to exercise his or her legal rights and acted on that belief to his or her detriment.

See also

Adverse possession

Estoppel by acquiescence

Equitable tolling

Submarine patent

References

^ Oxford English Dictionary, 2nd Ed., (1989)

External links

Nair, Manisha Singh (2006) "Laches and Acquiescence" in Indian intellectual property law

Family Court Jury Trial

Statutory Grounds
            The trial of all crimes, except in cases of impeachment, shall be by Impartial jury (where impeachment is the only charge that is not to be heard before a jury) at which the grounds must be proven by clear and convincing evidence; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Forensic Interview violated Public Act 168 of 1997

Bolden’s forensic interview clearly violated Public Act 168 of 1997 and the  Confrontation Clause of the Sixth Amendment to the United States Constitution. Statements made to interviewers  that serve primarily a forensic or investigative purpose are testimonial and are inadmissible pursuant to the Confrontation Clause.

             It is clearly established Nyela Bolden a professional failure to follow the proper Forensic Interview protocol and process during the November 21, 2007  interview “contaminated” the child witness, put words into his mouth of false allegations of abuse that really did not occur clearly establishing the minor child’s responses to questions were not reliable. (EX 26)

            As a result of the grossly negligent interview of OB, an ex parte petition was filed and expart order executed unlawful detention of AB placing her in the Fathers custody who had been substantiated twice for child abuse of AB’s siblings and abandoned his parental role in 2004.

6th Amendment Right to Confrom your accusers

Petitioner denied 6th Amendment Right to confront her accusers or to be confronted with the witnesses against her;
Crawford v. Washington: Eliminates a loophole policy, which violated the constitutional protections of the accused. Generally, Crawford bars the admission of testimonial hearsay statements against an accused unless the declarant is unavailable to appear at trial and the defendant had a prior opportunity to cross-examine the witness. The Administrative Court did not adequately consider the Petitioners constitutional right to confrontation.
Petitioner Ms. Bruns name has been improperly added to the registry section 722.627(3) “if the investigation of a report fails to disclose evidence of abuse or neglect the information identifying the subject of the report shall be expunged from the central registry.” Pursuant to MCL 722.627 further provides that “[a] person who is the subject of a report of record….may request the department to expunge from the central registry a report or record in which no relevant and accurate evidence of abuse or neglect is found to exist.”
Pursuant to MCL 722.627 (5) & (6) Petitioner Ms. Bruns is the subject of a report or record made under this act and therefore may request the department to expunge an inaccurate report or record from the central registry and local office file which has been repeatedly denied July 21, 2010.
Pursuant to Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir1990), "Pleadings in this case are being filed by Petitioner In Propria Persona, wherein pleadings are to be considered without regard to technicalities. Propria pleadings are not to be held to the same high standards of perfection as practicing lawyers”. also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In Re: HALL v. BELLMON 935 F.2d 1106 (10th Cir. 1991) " however in artfully pleaded, the pro se complaint, we hold to less stringent standards than formal pleadings drafted by lawyers, it appears "beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle him to relief."

intentional tort/1st amendment right/outragios conduct

Intentional Infliction of Emotional Distress



Torts & Tort Law Basics

 



Intentional Infliction of Emotional Distress

The Restatement (2nd) of Torts, section 46, states:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress:

(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.

So, IIED (Intentional Infliction of Emotional Distress) has four parts:

outrageous conduct by the defendant,

the intention of causing, or reckless disregard of the probability of causing, emotional distress,

actual suffering of severe or extreme emotional distress, and

actual and proximate causation of the emotional distress by the defendant's outrageous conduct.

The law will not recognize a mere insult or emotional injury without some "plus factor": hence, the outrageous conduct requirement. Importantly, outrageous conduct will be found where the defendant knew the plaintiff to be particularly disposed to harm by the conduct; in other words, the defendant can't plead a defense of having performed similar conduct in front of others with no damage if he knew the conduct would be received differently.

The distress suffered must be what a "reasonable person" would undergo given the circumstances, though there is an exception for "eggshell plaintiffs." Furthermore, as the name implies, bodily harm is not a requirement - mental damage alone may be sufficient. Where there is an absence of physical damage, the courts will often look more closely at the outrageous conduct itself, and an action will like where the conduct was sufficient to presume emotional harm.

As far as intent goes, willful, wanton or reckless behavior, in deliberate disregard of potential distress, will fulfill the requirement. With the exception of close family members, as evidenced in section (2)(a) above, or those who witness the event (2)(b), transferred intent will usually not be applied. But, in such cases where a third party is damaged, the court may look to familiar foreseeability analyses and the extent of the willful, wanton, or reckless conduct