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Types of Torts

Injuries come in all shapes and sizes.

Whether intentional or not, torts have their own labels, depending on the individual right that is violated.

Tort actions complaining about injuries to one's person are common in small claims courts. They claim a violation of the right to have yourself free from intentional or negligent hurts at the hands of other people or the instruments they control. In the cases of negligence, the injury is caused by instruments or agents the wrongdoer should have controlled, but didn't. These two, intentional and negligent, are known collectively as personal injury claims.

If someone takes his hands, feet, or other weapon to you and causes injury, it is a matter of intentional assault and battery. These also may be the subject of criminal prosecution, which will be discussed later.

Almost any kind of agent or instrumentality that people are supposed to keep under control can be the cause of a personal injury-dog bites, cat scratches and horse nips, for instance. Others in and endless list of possibilities include children's toys left where they should not be, such as on front sidewalks; foreign objects and defective structures in places of business, such as a display case with sharp edges, or fishing lures displayed without the hooks being covered; store displays that topple over; and car doors unexpectedly swinging open as you pass by in the parking lot.

There are a few cases that fall into a special niche in this area of tortious activity, called attractive nuisances. A person who maintains a structure or object that is peculiarly attractive to others, especially children, is required to be extra careful to prevent injuries from it. Damages follow when injuries result from an unattended ladder propped against a house, electric start lawn tractors, and unfenced or unwatched swimming pools of all types and sizes.

The tort called trespass encompasses all damages done, intentionally or negligently, to your property. Historically, injuries done to you or any interest in your real estate or personal property were called trespass, but the term has become increasingly narrower in meaning. Now it is limited to damage to real estate and the buildings on them.

Trespass can take the form of an injury to your right to occupy your property. When a neighbor intentionally or without regard to the facts, constructs his dog run, fence, or even part of his garage on your side of the property line, you can recover for the destruction of your azaleas by the dog run, for the cost of tearing down the fence if he won't, or even the value of that small portion of your real estate that is now covered by his garage. It could be the damage done by a teenager riding a bike on your front lawn.

Home improvements often cause small disasters for neighbors. For example, the tree surgeon's truck can crack your driveway or take out a small tree; the falling tree might take a long stretch of your gutter to the ground or level part of your hedge by mistake; your neighbor's plumber may deposit excess dirt on the other side of the property line and leave it. Even otherwise neighborly clean-up activities might cause damages. Water from a hose left on overnight can be the cause of a trespass tort. A baseball accidently thrown through your window by a group of neighborhood children is a cause for a trespass tort.

All of these, and many more situations, constitute trespass. In each, the person who caused the injury of allowed it to occur had a duty to control his instrument, agent or activity, and the failure caused compensable injury. The following elements constitute what you must prove to recover damages in these cases:

  1. The duty.
  2. The lapse or breach of the duty.
  3. The directly resulting harm.

Your right to the "peaceful enjoyment" of your house or home can also be wrongfully invaded by annoyances or disturbances from next door or nearby. These are known as just plain old nuisances. These are offenses to your senses. They may potentially be damaging to your health or to the community standard of decency. Smoke from constantly burning trash piles, excessive party noise, or chemical smells can make up a claim for a nuisance. You can get money to assuage your assaulted senses to the extent of your provable injuries.

In small claims court, what you can usually get is money. Most of the time, your main concern will be to have the nuisance stopped. So you will need to go to a court that has the power to order it stopped. You will be able to recover all provable damages incurred up to the time the nuisance is stopped in that court, too. Ask the clerk in your local small claims court if the judge has the authority to abate a nuisance for you.

Intentional or negligent injuries to property other than those connected to real estate are proven the same way. If your car is bumped by another car in a parking lot, if your wedding gown is ruined by an inept waiter, or if your living room rug is damaged by a salesperson selling "the greatest cleaning discovery ever," you can sue. And you can win.

There are injuries to other recognizable rights that are not as common. For example, your right to personal liberty and freedom can be violated when someone with no authority detains you without your consent. These cases can arise when a store prevents all customers from leaving because a suspected shoplifter is in the store, or if someone without cause tries to make a "citizen's arrest" on you, or even grabs your arm preventing you from leaving. Remember two things about these types of cases: You must be able to prove that you were actually injured. Even if you were only "mortified," you may still have a provable case if a psychologist or other mental health professional will testify that you were in fact injured, and how the injury affected your life.

You also have a right to be free from intentional psychological damage. If some evildoer falsely tells you that your child has been seriously injured, you can recover for your resulting emotional injury. Again, proof of psychological damage would be the same as in false arrest or imprisonment cases.

You and your rights to operate a business are protected from false damaging statements which constitute libel and slander. If you discover that a competitor is falsely telling your customers that the drinks you sell are watered down and you can prove that you lost a specific amount of business as the direct result, you can recover. If all else is equal, you can prove it by comparing the business books from before and after the statements were made.

How much is this special damage to your psyche worth? In most cases, you need to prove the value of your damages with some specificity. But in these personal injury cases, where the injury is to your physical or emotional well-being, peace, or feelings, the value, once you describe what happened and how it affected you, is up to the "enlightened conscience" of the judge or jury, taking into consideration all the circumstances and treating each party fairly. Damages that are not certain because of their subjective nature (how do you measure pain and suffering, for example?) are known as unliquidated damages. Because this is true, there is some risk of these cases having a value greater than the small claims court you are in can handle. Once you know the top dollar amount your local court can deal with, you can make a decision to bring it there or to a different court that can hear cases involving larger dollar amounts.

Further, if your injury or medical treatment is complicated, your case may need a doctor's testimony about your treatment and condition. Your doctor would be the best witness to testify that your injury was caused by the wrong done to you by the other party, and that the treatment was reasonable and necessary. You may need an attorney to secure this testimony for you in the proper form. All personal injury cases where there is a question that you might be entitled to more money than your small claims court can award should be pursued in other "bigger money" courts.

Copyright 1999 by Judge William E. Brewer. Published by arrangement with Career Press.

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