This document provides an overview of tort law and flood insurance. It discusses key concepts in tort law including the different types of torts (negligence, intentional torts, strict liability), parties, burdens of proof, damages, and defenses. It then summarizes the National Flood Insurance Program which makes flood insurance more affordable through private insurers but limits their liability. Specifically, private insurers administering government flood policies cannot be sued for bad faith, punitive damages, or attorney fees as they could under most state insurance laws. The government also has broad immunity from flooding liability under the Flood Control Act.

1. Tort Law
and
DRLS 6040
Tulane University
Insurance

2. INTRODUCTION
Tort &The Law
A tort is an act or omission that gives rise to injury
or harm to another and amounts to a civil wrong for
which courts impose liability
Aim of tort law is to impose liability on parties
responsible for the harm or damage to others and to
deter future conduct

3. Parties and
The Burden of Proof
The plaintiff must prove their case by the
preponderance of the evidence—more likely than
not or more probable than not that the Defendant
is liable. A .01 percent tip of the scales of justice in
their favor.
This is different than the level of proof in a
criminal case. There, the prosecutor must prove
that the defendant was guilty “beyond a reasonable
doubt.” It is a much higher, more difficult standard
of proof than in a tort case. Big tip of the scales.
Plaintiff
Defendant
Plaintiff is the person who has been
injured, and is the one who is suing.
Defendant is the person or entity who
allegedly did wrong; also called the
tortfeasor. The defendant is the one
being sued.

4. Tort Law vs.Criminal Law
Act can be both a tort (a civil wrong) and a crime
Some acts may provide a basis for both tort & criminal liability (i.e. gross negligence that
endangers the lives of others may simultaneously be a tort and a crime.
Example: OJ Simpson was acquitted of the criminal case (beyond all reasonable doubt burden)
but found liable for the wrongful deaths (a lesser preponderance of the evidence burden)
Torts are distinguishable from crimes, which are wrongs against the state or society at large.
Criminal liability enforces public justice while tort law addresses private wrongs with the
central purpose of compensating the victim rather than punishing the wrongdoer.

5. Negligence
By far the most common
type of tort
Based on what a reasonable
person, under the
circumstances, would have
done or not done
Cases do not involve deliberate
actions—it's when an individual
or entity is careless and fails to
provide a duty owed to another
person

6. Plaintiff must
prove:
4 ELEMENTS OF NEGLIGENCE
The
defendant
owed them a
duty
The
defendant
breached this
duty
Causation Damages

7. D owed P a duty of reasonable care
D breached that duty
P suffers an injury
D’s breach caused P’s injury
D is.....
In other words
NEGLIGENT

8. Examples of Negligence Torts
Slip & fall accidents Motorcycle accidents
Truck accidents
Car accidents
Pedestrian accidents
Bicycle accidents

9. What is Duty??
Explicitly written:
There are written driving laws; thus, every driver has a
duty to stop at a stop sign, and failure to do so is a
breach of that duty.
Common knowledge about reasonable care under all
the circumstances:
Waving a golf club around on the course may be okay;
waving a golf club around on a crowded street would
be a breach of the duty to exercise reasonable care.
•
•Breach of duty:
Occurs when the wrongdoer fails to comply with what the duty requires; this can be
intentional, as when, knowing that it’s wrong, someone hauls off and hits somebody
or it can be negligent, as when a motorist runs a stop sign, because they didn’t see it.

10. EstablishingCausation
Plaintiff must prove that his or her
injuries and losses were caused by the
defendant.

11. Must establish BOTH types:
Cause-in-fact
Cause-in-fact is determined by the
"but for" test--"but for" the action, the
result would not have happened. (For
example, but for running the red light,
the collision would not have occurred)
The action is a necessary condition,
but may not be a sufficient condition,
for the resulting injury. There are
many times there is more than one
cause, which complicates things
A proximate cause is an event sufficiently
related to an injury that the courts deem
the event to be the cause of that injury
Courts use the concept of proximate
cause in assessing responsibility in both
tort and insurance settings
Causation
Proximate (legal) cause

12. The most common test of proximate cause is
foreseeability. It determines if the harm or damage
resulting from action could reasonably have been
predicted or was reasonably foreseeable (If I run a
red light it's foreseeable that I could crash and cause
harm)
For an act to be deemed to cause harm, both tests
must be met; proximate cause is a legal limitation on
cause-in-fact.
Foreseeability HARM

13. Punitive or Exemplary
Injunction
Monetary
compensation
Compensatory damages
are typically equal to
the monetary value of
the injured party's loss
of earnings, loss of
future earning capacity,
pain and suffering, and
reasonable medical
expenses. Thus, courts
may award damages for
incurred as well as
expected losses
When the court has an
interest in deterring
future misconduct,
and/or the act was
willful and wanton,
grossly negligent,
reckless or heinous,
the court may award
punitive damages in
addition to
compensatory damages
Compels a party to
cease an activity
Damages& Remedies
The law recognizes torts as civil wrongs and allows
injured parties to recover for their losses.

14. Intentional
When an individual or entity purposely
engages in conduct that causes injury or
damage to another.
Based on willful misconduct or intentional wrongs.
Note: the intent is not necessarily a hostile intent or even a desire to do
serious harm. A person acts intentionally if they have a conscious desire to
produce consequences the law recognizes as tortious, or wrongful. Thus, a
person who has no conscious desire to cause the consequences, but is aware
that the consequences are highly likely to follow (reasonably foreseeable), can
also be found to have acted intentionally.
For example, striking someone in a fight would be consider an
intentional act that would fall under the tort of battery; whereas
accidentally hitting another person would not qualify as “intentional”
because there was no intent to strike the individual (…however, this
act may be considered negligent if the person hit was injured).
Torts

15. Examples of
Intentional Torts
Assault Conversion
Battery Intentional infliction
of emotional distress
Fraud/deceit
False
imprisonment
Defamation
Trespassing
(land or property)
Wrongful death

16. Strict Liability
Strict, or “absolute,” liability applies to cases where responsibility for an injury can be imposed on
the wrongdoer without proof of negligence or direct fault; what matters is that an action occurred
and resulted in the eventual injury of another person.
Defective product cases are prime examples of when liability is maintained despite intent; the
injured consumer only has to establish that their injuries were directly caused by the product in
question in order to have the law on their side--the fact that the company did not “intend” for the
consumer to be injured is not a factor.
A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to
be used without inspection for defects, proves to have a defect that causes injury to a human being.
The purpose of such liability is to insure that the costs of injuries resulting from defective products
are borne by the manufacturers that put such products on the market rather than by the injured
persons who are powerless to protect themselves.

17. Strict Liability
Defective
products
(Product
Liability)
Animal
attacks (dog
bite lawsuits)
Abnormally
dangerous
activities
Examples of

18. Why Tort Law
(and Insurance) Is a Good Thing
Compensation to and for the injured plaintiff.
The wrongdoer pays money to fairly compensate
the injured plaintiff. This means that the
innocent plaintiff isn’t forced to absorb the
losses, and also that others, such as taxpayers, also
do not pay for the wrongdoer’s act.
Insurance makes sure that a defendant
has the ability to make the plaintiff
whole.
Disclosure of wrongdoing. Often, at trial,
evidence is produced which shines a light on
wrongdoing that had been hidden away. Because
trials are open to the press and the public, this is
a good way to spread the news, and prevent
others from being injured.
Deterrence--A verdict can send a powerful
message to a wrongdoer so that they (or it, if
it’s a corporation,) stop the behavior, or
modifies or recalls the dangerous product; A
verdict may do much more than compensate
the plaintiff – it may save countless other lives.
This is the idea behind class action suits.

19. Turning to our material...

20. Flooding, Insurance
&The Government
Congress created the National Flood Insurance
Program (NFIP) to help make flood insurance more
affordable in higher-risk areas.
FEMA oversees the program and writes the terms of
the Standard Flood Insurance Policy (the "Policy"),
and the Federal government pays claims.

21. More on NFIP...
NFIP Policies are
Administered by
Private Insurance
Companies, not
FEMA. Almost
all NFIP policies
are administered
& sold by private
insurance
companies, such
as Allstate or
Nationwide, not
FEMA.
Accordingly, the
NFIP claims
process and the
decisions about
whether to pay or
deny claims is
handled by an
insurance
company, not by
FEMA.
The Federal government allows
private insurance companies to sell
flood policies using the Policy that
FEMA has drafted through what is
called the "Write Your Own" or
"WYO" program. The Federal
government pays these private
insurance companies certain fees
for administering these claims.
Although the money to pay for
covered NFIP claims comes from
the Federal government, a private
insurance company will make all
decisions in the claims process.
Federal Law Protects These Private Insurers From "Bad Faith"
Claims

22. What is
Under most state law, insurance companies are prohibited
from acting in "bad faith" by engaging in conduct such as
unreasonably delaying claims or refusing to pay without good
reason.
If an insurance company acts in "bad faith," the insured may be able to
recover punitive damages. The prospect of "bad faith" claims and other
remedies under North Carolina law help keep insurance companies
accountable for their actions and deter unfair practices.
Federal law provides that the same insurance companies cannot be
held liable under state law for "bad faith," punitive damages, or
attorneys' fees when they are administering NFIP flood claims.
"Bad Faith?"

23. Immunity fromSuit
•Also called governmental immunity, sovereign immunity and qualified immunity
• Employees and officers of the federal government occasionally commit torts just like other members of
the general public.
• Until the mid-20th century, however, the principle of “sovereign immunity”—a legal doctrine that bars
private citizens from suing a sovereign government without its consent—prohibited plaintiffs from suing
the United States for tortious actions of federal officers and employees.
•Thus, for a substantial portion of this nation’s history, persons injured by torts committed by the federal
government’s agents were generally unable to obtain financial compensation through the judicial system.
•Sovereign immunity refers to a government’s immunity from being sued in its own courts without its
consent. This doctrine dates as far back into the English common law as the thirteenth century. The
premise of sovereign immunity was that “the king can do no wrong,” because his will was the law. If the
king acted, it was inherently lawful. Furthermore, there was no court high enough to try a king.

24. Can tort law strengthen society’s response to these
risks?
In part, the answer to this question may depend on whether we see tort law as
exclusively a matter of enforcing private rights, or whether we see it as also
encompassing public law goals such as deterrence and risk spreading.

25. & The Goverment
A tort suit against the government, whether it be state or
federal, is a different process from a private suit. Historically,
such suits were barred by sovereign immunity.
Federal and state tort claims acts serve as waivers of sovereign
immunity to permit a private party to sue the government. The
purpose of these acts are to provide monetary compensation for
damages that are caused by a government employee. Unlike a
normal torts suit, where you would go directly to the court, in a
tort claims act case, you must first file a claim with the
government agency responsible for the damages. This claim is
called an "administrative claim." If the agency refuses to pay or
rejects your claim, you may commence a lawsuit.
Tort Suits

26. The federal government is generally liable for
negligence under the Federal Tort Claims Act, but
only if the negligence relates to the implementation
of a project rather than the basic policy decisions
involved in planning. Moreover, the federal
government enjoys especially broad statutory
immunity for damages caused by flooding. The
Flood Control Act of 1928 provides that “[n]o
liability of any kind shall attach to or rest upon the
United States for any damage from or by floods or
flood waters at any place. "
FLOODING

27. THE KATRINA EXAMPLE
Tort cases generally deal with routine risks—the kind of risk that a person
encounters as a result of driving a car or buying a product. Such risks are also
staples of the insurance industry. Today, however, society faces risks that
threaten potentially massive harms to large segments of the public. Katrina
destroyed the city of New Orleans, claiming 1,464 victims and causing well over
$22.6 billion2 in property damage. Much of the damage might have been
avoided if the city’s flood control system had performed as designed.

28. Congress decided for the first time that the federal government should play a
major part in flood control, which had previously been seen as a state and local
responsibility. The goal of the Act appears to have been to limit the federal
government’s financial exposure to the direct cost of the flood control project.
In United States v. James, the United States Supreme Court rejected
arguments that the provision was limited to immunity for property damage
and instead emphasized the broad scope of the statutory language.
This immunity prevented victims of Katrina from recovering damages from the
federal government.

29. KATRINA
EXCEPTION
In re Katrina Canal Breaches Consolidated Litigation, involved harm was caused
by a navigation project (the Mississippi River Gulf Outlet canal, commonly known
as “MR GO”) rather than a flood.
Court found that the Corps could be held liable for damages arising out of
activities surrounding a navigational channel notwithstanding the fact that those
actions caused the failure of certain levees.

30. Under the flood
insurance scheme,
FEMA’s
protections are
extended to the
private carriers
under the form of
no bad faith
claims.
Only
compensatory
damages, no
punitves
No attorney’s
fees A major
divergence
from most
state
insurance law
protecting
consumers
Getting back to that flood
insurance plan...

31. Questions...