This document discusses torts and damages in construction. It defines torts as legal liabilities independent of contract that apply to involuntary assumption of risk. The main types of torts discussed are negligence, fraud, libel, slander, battery, and assault. Negligence is the most common tort in construction and requires proving duty, breach, damages, and causation. Intentional torts like fraud allow for punitive damages to punish unreasonable acts. Strict liability only applies in limited cases like defective products.

1. Torts and Damages
 Up to now, everything discussed has
related to contract liabilities- voluntary
assumptions of obligation and risk
 Tort duties are legal liabilities
independent of contract standing- apply
to involuntary assumption of liability and
risk
 Tortfeasor- party who breaches a tort
duty
 Victim-party suffering loss due to breach

2. Torts and Damages
 Types of torts (Names differ by jurisdiction-
many types not listed, all are civil matters
 Negligence- unreasonable actions
 Fraud- misrepresentation for value
 Libel- untrue written statements causing loss
 Slander- untrue spoken statements causing
loss
 Battery- touching without consent
 Assault- threatening to touch without
consent

3. Torts and Damages
Reasonable Doubt
Government prosecutes
Jury system
Punishment
Preponderance of Evidence
2-Party suits
Voluntary
No punishment
Involuntary
Punishment

4. Torts and Damages
 Intentional torts carry punitive damages
 Intent is to make people pay for injuries
resulting from their unreasonable acts
 Four general categories of tort common in
construction
 Negligence
 Intentional tort/ Fraud
 Strict liability
 Deceptive practices

5. Torts and Damages
 Negligence- failure to act reasonably
causing injury to others (most common
tort)
 Must prove all of the following
 Existence of duty to be reasonable
 Breach of that duty
 Damages incurred as a result of that
breach
 Causation between breach and
damage is direct

6. Torts and Damages
 We all have a duty to act reasonably in
certain situations (driving, public gatherings,
professional relationships, manufacturing
and selling)
 Duty must be based on a specific act- can’t
sue for “general unreasonableness”
 Arch/Engr has no duty to contractor, can’t
sue for tort (in general) except for things
such as safety, injury from design flaw, etc.

7. Torts and Damages
 Breach- prove that the specific act
was unreasonable for the conditions
(speeding, yelling fire). Harder to
prove than duty
 Damages- injured person must prove
loss- no loss-no tort
 Causation- loss caused directly by
breach (aggravating condition can be
included, but not original condition)
can be hard to prove

8. Torts and Damages
 Making a mistake is not the same as negligence.
Reasonableness standard protects to some degree
 Misrepresentation of fact is a special form of
negligence when no reasonable grounds for
believing a statement can be found
 Statement issued as fact (“this drug is safe”)
 Statement is false (drug causes heart problem)
 No reasonable grounds for belief (drug wasn’t
tested)
 Party justifiably relies on statement (party takes
drug)
 Damages result (Party has heart damage)

9. Torts and Damages
 Negligence per se- violation of statute, no
proof of duty or breach required
 Valid ordinance was violated
 Injured party is member of protected class
 Harm suffered is prevented by the ordinance
 Violation of statute caused harm or damages
 Party suffered loss
 OSHA, ADA, EEO, building codes, etc
 Currently undergoing re-interpretation

10. Torts and Damages
 Liability of designers to subsequent
users- duty exists to subsequent
users of a product. Remodeling
industrial sites
 Liability of designers to subcontractors
and contractor differs by jurisdiction
 Majority rule- no duty exists, so no
damages can be collected from
designer except for personal injury

11. Torts and Damages
 California Rule
• Balance test under theory of negligence
• Degree of certainty of harm
• Foreseeability of harm
• Closeness of connection between
conduct and injury
• Advancing policies to prevent future harm
• Assignability of moral blame
• Difficult to enforce

12. Torts and Damages
 Intentional Tort (Fraud)- presence of
intent to cause injury or harm makes
tort intentional (difficult to prove intent)
 Fraud (deceit, misrepresentation,
false claim) is the most common
intentional tort in construction

13. Torts and Damages
 Fraud
 False representation or nondisclosure
of material fact
 With intent to deceive
 Misleading statement was relied on by
complainant
 Actual damages result

14. Torts and Damages
 Deceptive practice laws- discourage
fraud and make it easier to bring the
case (no longer need to prove intent)
 Deception is inherent in the act
covered by the statute
 Contorts- claiming a contract breach
as a tort.

15. Torts and Damages
 Contorts
 Torts carry higher awards than contract
cases
 Lawyers “prefer” tort claims
 Try to claim some specific action under
contract is actually a tort
 Historic reluctance by the court to allow
breach of contract to be turned into a tort
 Mostly for personal contracts (not
construction)

16. Torts and Damages
 Strict liability-only applied in very limited
situations such as manufacture of defective
products or practice (blasting)
 Manufacturers of defective products are
strictly liable for injury IF
 Flaw is present at time of sale AND
 Flaw causes injury OR
 Manufacturer fails to warn of risk OR
 Product has correctable design defect

17. Torts and Damages
 Strict Liability of product manufacturers is
why we have so many warning labels on
products
 Construction contractors are not considered
manufacturers of products
 Assumption of risk- common defense
against tort in construction (and elsewhere)
 Injured parties are responsible for their own
injury if they have voluntarily assume risk
inherent in the activity (sign a risk
assumption to go bungie jumping)

18. Torts and Damages
 Proximate cause damages- tort damages
are generally greater than contract
damages because they include foreseeable
AND unforeseeable damages (proximate
cause)
 Pain and suffering- compensation for
experience of pain and suffering over a
specified time. Difficult to assess, usually
per diem award. Includes emotional pain

19. Torts and Damages
 Punitive damages- intentional torts
allow exemplary awards used to
“make and example” out of offender.
Frequently reduced by the court
 Tort cases- McDonalds coffee, Toro
mowers, Philadelphia hospital
 Calls for tort reform, resisted by trial
lawyers. Tort does allow for
eliminating the incompetent, but can
be abused. Key is to find the best
balance