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Are the distinctions between criminal/infraction/civil/tort/contract law good?

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  • Are the distinctions between criminal/infraction/civil/tort/contract law good?

    This came up in the adultery thread and I thought I'd start a new thread to avoid derailing that one.

    I don't understand why it's a good idea to have the distinction between these things. It seems that wrongs are often arbitrarily classified as "crimes" or "not crimes" (like "infractions", "torts", etc). (And with the ruling on the Obamacare individual mandate, there is also the category of a punishment of a wrong as a "tax".)

    As well as seeming arbitrary, it seems like it can be wasteful too, say when you have a a case of battery, and there is both a criminal trial and a civil trial. Why shouldn't there just be one trial to determine guilt, and then decide what to do about it?

    I understand that there are procedural differences between them (e.g. "beyond reasonable doubt" vs "preponderance of the evidence") but I don't know whether those are good differences.

    One suggested distinction I've heard is that "torts" are wrongs against another human beings while "crimes" are wrongs against "society". First, it doesn't seem like a wrong against "society" (and by implication not a wrong against any human being) is a good thing for law to punish. It tends to just be a justification for victimless "crimes". And second, that's not consistently followed. Indeed, the worst wrongs against persons (violence, theft, etc) are considered "crimes".

  • #2
    Originally posted by Joel View Post
    As well as seeming arbitrary, it seems like it can be wasteful too, say when you have a a case of battery, and there is both a criminal trial and a civil trial. Why shouldn't there just be one trial to determine guilt, and then decide what to do about it?
    In the case of home defense, for example, or even personal defense, I may be found LEGALLY justified in killing another individual in defending myself, my property and/or my family.

    However, the family who lost their loved one (scoundrel though he may be) deserves to have their day in court as to lost wages or personal suffering or whatever else.

    Further - let's say the guy was drunk, and was pounding on my door yelling for me to let him in, THINKING he was at his own home, or the home of a friend. I may have total legal justification for shooting him through the closed door (which I don't think I would ever do), but the family still has a bread winner who won't be coming home, and they should be able to seek damages.
    The first to state his case seems right until another comes and cross-examines him.

    Comment


    • #3
      Originally posted by Joel View Post

      One suggested distinction I've heard is that "torts" are wrongs against another human beings while "crimes" are wrongs against "society". First, it doesn't seem like a wrong against "society" (and by implication not a wrong against any human being) is a good thing for law to punish. It tends to just be a justification for victimless "crimes". And second, that's not consistently followed. Indeed, the worst wrongs against persons (violence, theft, etc) are considered "crimes".
      I have thought that many types of theft, maybe mostly shoplifting, should be handled as civil matters rather than criminal. There was one case I know of where a store handled all the evidence but the police made an arrest. This already had blurred the lines between civil handling of it and a formal criminal case. In face the proper evidence hadn't been obtained from the store -- which caused confusion in the courts.

      At least we should have most of the minor commercial theft handled as civil matters. Maybe if there is a history of such theft by a person, then the matter could be designated a 'crime.'

      Comment


      • #4
        I'm mostly subscribing but I will state my opinion. Yes, I think we need the distinction. If every aggrieved person had to meet 'reasonable doubt' then a lot of injustices would have to be tolerated. 'Preponderance' has a place - but I think matters of life and death should be under the criminal, not the civil standard and the law presently does not do that.
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        • #5
          Originally posted by Joel View Post
          This came up in the adultery thread and I thought I'd start a new thread to avoid derailing that one.

          I don't understand why it's a good idea to have the distinction between these things. It seems that wrongs are often arbitrarily classified as "crimes" or "not crimes" (like "infractions", "torts", etc). (And with the ruling on the Obamacare individual mandate, there is also the category of a punishment of a wrong as a "tax".)

          As well as seeming arbitrary, it seems like it can be wasteful too, say when you have a a case of battery, and there is both a criminal trial and a civil trial. Why shouldn't there just be one trial to determine guilt, and then decide what to do about it?

          I understand that there are procedural differences between them (e.g. "beyond reasonable doubt" vs "preponderance of the evidence") but I don't know whether those are good differences.

          One suggested distinction I've heard is that "torts" are wrongs against another human beings while "crimes" are wrongs against "society". First, it doesn't seem like a wrong against "society" (and by implication not a wrong against any human being) is a good thing for law to punish. It tends to just be a justification for victimless "crimes". And second, that's not consistently followed. Indeed, the worst wrongs against persons (violence, theft, etc) are considered "crimes".
          For the most part, I think the distinctions are good. Criminal matters require a higher standard of proof and generally have more rigid evidence procedures, because the potential punishments (death, imprisonment, community corrections) are more severe than the financial and property-related penalties associated with civil matters.


          Originally posted by mikewhitney View Post
          I have thought that many types of theft, maybe mostly shoplifting, should be handled as civil matters rather than criminal. There was one case I know of where a store handled all the evidence but the police made an arrest. This already had blurred the lines between civil handling of it and a formal criminal case. In face the proper evidence hadn't been obtained from the store -- which caused confusion in the courts.

          At least we should have most of the minor commercial theft handled as civil matters. Maybe if there is a history of such theft by a person, then the matter could be designated a 'crime.'
          I disagree. With the way our courts handle civil issues (and the socio-economic status of most of the people committing this type of crime), then aggrieved party would rarely, if ever, actually receive compensation for their loss. As it is, the criminal punishment (which is more severe) doesn't completely discourage people from committing the crime, so what you're advocating is that we should make the punishment even less severe. There would be an huge increase in petty theft. As a fellow consumer, I'd rather not pay even higher rates because stores have to assume that "X" percentage of their inventory will be lost to theft. Stores already plan for this, but there's no reason to voluntarily increase the percentage.

          As a side note, in my state the store owner can charge the suspect with the crime themselves, without ever calling the police (as long as it's a misdemeanor). Our loss prevention employees in the retail stores do this all the time. They'll pull video, document what they observed, and go take out a warrant on the suspect (though there are some procedural variations). The officer handles the arrest, and completes their own documentation but it's up to the store to provide evidence and testimony to prove the charge. Now if the officer is the charging party, then they'll collect video footage and all that jazz.
          "If you believe, take the first step, it leads to Jesus Christ. If you don't believe, take the first step all the same, for you are bidden to take it. No one wants to know about your faith or unbelief, your orders are to perform the act of obedience on the spot. Then you will find yourself in the situation where faith becomes possible and where faith exists in the true sense of the word." - Dietrich Bonhoeffer, The Cost of Discipleship

          Comment


          • #6
            Originally posted by Cow Poke View Post
            In the case of home defense, for example, or even personal defense, I may be found LEGALLY justified in killing another individual in defending myself, my property and/or my family.

            However, the family who lost their loved one (scoundrel though he may be) deserves to have their day in court as to lost wages or personal suffering or whatever else.

            Further - let's say the guy was drunk, and was pounding on my door yelling for me to let him in, THINKING he was at his own home, or the home of a friend. I may have total legal justification for shooting him through the closed door (which I don't think I would ever do), but the family still has a bread winner who won't be coming home, and they should be able to seek damages.
            In your example, it seems you are suggesting that the drunkard and his family should be treated as different victims/charges and that we should separately ask (1) "Did you commit an injustice against the drunkard?" and (2) "Did you commit an injustice against the drunkard's family?"
            An incident can have multiple victims and possibly multiple charges/claims/accusations (and counter-claims/charges/accusations). And they may be separable even into different trials. But it doesn't seem like that implies that they should be categorized and treated differently as criminal or civil. If any one of the accusations of injustice is true, I don't see why that shouldn't/couldn't be considered a crime.

            Originally posted by Teallaura View Post
            I'm mostly subscribing but I will state my opinion. Yes, I think we need the distinction. If every aggrieved person had to meet 'reasonable doubt' then a lot of injustices would have to be tolerated. 'Preponderance' has a place - but I think matters of life and death should be under the criminal, not the civil standard and the law presently does not do that.
            With any standard there is a tension between protecting people against false accusations vs protecting victims against injustice. For any chosen standard, someone could argue that it goes too far in one direction or the other. You seem to be saying that the ideal standard is different in different cases. If so, then there is the question of what determines what standard is ideal for each case. You seem to be making the distinction based on the severity of the crime/punishment. If worse injustices require more protection for the accused, then that would seem to undermine your argument; it would mean the worse the injustice, the more of it would have to be tolerated.

            Originally posted by mikewhitney View Post
            I have thought that many types of theft, maybe mostly shoplifting, should be handled as civil matters rather than criminal. There was one case I know of where a store handled all the evidence but the police made an arrest. This already had blurred the lines between civil handling of it and a formal criminal case. In face the proper evidence hadn't been obtained from the store -- which caused confusion in the courts.

            At least we should have most of the minor commercial theft handled as civil matters. Maybe if there is a history of such theft by a person, then the matter could be designated a 'crime.'
            It sounds like by "civil matter" you might even mean handle outside the courts. I think it is perfectly reasonable for two parties to come to a settlement outside of court, without involving the state.

            Comment


            • #7
              Originally posted by Joel View Post
              In your example, it seems you are suggesting that the drunkard and his family should be treated as different victims/charges and that we should separately ask (1) "Did you commit an injustice against the drunkard?" and (2) "Did you commit an injustice against the drunkard's family?"
              First, a man who is drunk is not necessarily a "drunkard". A "drunkard" indicates somebody who is perpetually drunk.

              And, no - I'm focused on the guy in the house who is defending his home - he does not yet know the guy is drunk, nor does it really matter at that point. He is (presumably) in fear for his life and is protecting his family.

              That's why there's a "civil" side to this.... the Police will respond to the criminal action - the apparent home invasion and the home owner's actions to protect his property. IF it is presented to a grand jury, the grand jury will determine if it was a "righteous shooting". (legality)

              An incident can have multiple victims and possibly multiple charges/claims/accusations (and counter-claims/charges/accusations). And they may be separable even into different trials. But it doesn't seem like that implies that they should be categorized and treated differently as criminal or civil.
              You deal with the facts you have at the time - it is a crime to invade the home of somebody else, and it may be necessary for quick action by the police, possibly even with deadly force.

              On the other hand, the "civil" side could be dealt with in a much more "civil" () manner.

              There really are two separate issues:

              A) Did the homeowner act within the constraints of the law
              2) Is the family eligible for any wrongful death benefits
              The first to state his case seems right until another comes and cross-examines him.

              Comment


              • #8
                Originally posted by myth View Post
                For the most part, I think the distinctions are good. Criminal matters require a higher standard of proof and generally have more rigid evidence procedures, because the potential punishments (death, imprisonment, community corrections) are more severe than the financial and property-related penalties associated with civil matters.
                The kind of punishment doesn't necessarily determine its degree of severity. A large monetary award can possibly be more devastating to someone's life than a short jail time or light community service. Also sometimes the punishment for a "crime" is just a monetary payment (fine) or other property-related penalty.

                And in the case of multiple kinds of punishment for the same act, is it reasonable to make separate guilty/innocent judgements for each kind? E.g. if the consequence of an act is jail and a monetary payment (whether to the victim or to the state), is it reasonable to independently find them guilty of the act and not guilty of the act, such as when two different trials are held for one act of battery?

                Even if we accept that there should be a higher burden of proof for more severe punishments, it's still not clear that there should be a line drawn at some degree of severity such that we call the one "crimes" and the other "not crimes".

                And finally, that's not really the distinction that is made in existing law. For example, suppose someone willfully withholds $200 million that they are contractually obligated to pay. I would think that that is morally equivalent to the theft of $200 million and should be punished equally. And yet the former is treated as "not a crime" and the 'punishment' is typically to require the payment with interest, while "theft" of the same degree is considered a "crime" (even a felony) has more severe punishment. This is backwards from what you propose. Instead of (1) saying that an act calls for a certain degree of punishment, and then based on that degree classifying it as a crime or not, it is that (2) the acts are categorized on other grounds and then different kinds and degrees of punishments are assigned based on those categories.

                Comment


                • #9
                  Originally posted by Cow Poke View Post
                  First, a man who is drunk is not necessarily a "drunkard". A "drunkard" indicates somebody who is perpetually drunk.
                  I stand corrected.

                  You deal with the facts you have at the time - it is a crime to invade the home of somebody else, and it may be necessary for quick action by the police, possibly even with deadly force.

                  On the other hand, the "civil" side could be dealt with in a much more "civil" () manner.

                  There really are two separate issues:

                  A) Did the homeowner act within the constraints of the law
                  2) Is the family eligible for any wrongful death benefits
                  In the case of (2), their eligibility would also be determined by law.
                  In both cases the question is whether the homeowner committed a wrong such that the homeowner should be forced to pay restitution and/or other penalties. Correct?
                  If in the eyes of the law the homeowner committed no wrong, then the answer to both (A) and (2) would be "no."

                  Comment


                  • #10
                    Originally posted by Joel View Post
                    I stand corrected.


                    In the case of (2), their eligibility would also be determined by law.
                    Yeah, but it's fuzzier, and the "burden of proof" and other aspects are different.

                    In both cases the question is whether the homeowner committed a wrong such that the homeowner should be forced to pay restitution and/or other penalties. Correct?
                    Not really - in the legal case, it's simply whether he was justified in shooting, or should be tried for the criminal offense of murder, manslaughter, or whatever, and face fines or jail time.
                    The CIVIL case would be about restitution.

                    If in the eyes of the law the homeowner committed no wrong, then the answer to both (A) and (2) would be "no."
                    No, even IF the homeowner was not charged with a crime, or if he was charged, but found not guilty, there is STILL a possibility of a civil suit on a totally different track.

                    Let's say that the police found that he acted prudently, believing that he was in fear for his life and acted appropriately within the confines of the law.
                    They can elect not to charge him for an offense.
                    They can elect to refer it to a grand jury.
                    The grand jury can "no bill" him, or refer it for trial.
                    It can go to trial and he can still be found not guilty.

                    HOWEVER, the rules of evidence for a civil trial are different, burdens of proof are different, and a grieving family could argue the extenuating circumstances that the homeowner "knew or should have known" that it was just a confused man trying to get into what he believed was his own home.

                    This is one of the biggest problems with the Concealed Carry Permit situation --- just because I have a legal right to carry a gun, and just because I have a legal right to kill somebody in self defense, does not absolve me from the CIVIL penalties of taking the life of another human being.
                    The first to state his case seems right until another comes and cross-examines him.

                    Comment


                    • #11
                      Originally posted by Joel View Post
                      The kind of punishment doesn't necessarily determine its degree of severity. A large monetary award can possibly be more devastating to someone's life than a short jail time or light community service. Also sometimes the punishment for a "crime" is just a monetary payment (fine) or other property-related penalty.

                      And in the case of multiple kinds of punishment for the same act, is it reasonable to make separate guilty/innocent judgements for each kind? E.g. if the consequence of an act is jail and a monetary payment (whether to the victim or to the state), is it reasonable to independently find them guilty of the act and not guilty of the act, such as when two different trials are held for one act of battery?

                      Even if we accept that there should be a higher burden of proof for more severe punishments, it's still not clear that there should be a line drawn at some degree of severity such that we call the one "crimes" and the other "not crimes".

                      And finally, that's not really the distinction that is made in existing law. For example, suppose someone willfully withholds $200 million that they are contractually obligated to pay. I would think that that is morally equivalent to the theft of $200 million and should be punished equally. And yet the former is treated as "not a crime" and the 'punishment' is typically to require the payment with interest, while "theft" of the same degree is considered a "crime" (even a felony) has more severe punishment. This is backwards from what you propose. Instead of (1) saying that an act calls for a certain degree of punishment, and then based on that degree classifying it as a crime or not, it is that (2) the acts are categorized on other grounds and then different kinds and degrees of punishments are assigned based on those categories.
                      I believe that incarceration is far more severe than monetary punishment (for reasons of social standing, being labelled as a criminal, physical and mental impacts, etc). The people that large monetary penalties actually impact are the people who have the resources to make such payment in the first place. Most people simply don't have large sums of money with which to make court-ordered payments. Furthermore, it can be difficult if not impossible to actually receive payment when restitution is ordered in a criminal case (a business owner once told me that in 23 years of doing business, he's never seen one single penny in restitution, despite it having been ordered by the court many times). But these are just my 2-3 cents.

                      The law where I live does make the distinction between theft and civil matters. Withholding $200 million that someone is contractually owed is not the same thing as theft at all. The law says for it to be theft the person must steal, take, and carry away property belonging to another, intending to deprive the owner of the property permanently, while knowing the property was not theirs to take. In your example, the person did not take or remove anything, they've simply not given the other party the money as per their agreement. Basically, it goes to the mens rea of the person committing the act. One act is considered criminal because legislatures (and the courts) have decided there is criminal intent on the defendant's part. Withholding the money in your example probably occurred because the guy with $200 million felt the other party didn't properly fulfill their side of the contract, and thus he wasn't obligated to pay. In his mind, he's not doing anything wrong. And thus the reason for civil suits. There is alleged wrongdoing, but no criminal act or criminal intent so it is dealt with by other means.

                      Quite frankly, if the act is morally or ethically wrong but the actions do not meet the statutory (or court-held) definitions of any crime, then the matter is civil and not criminal. The state has a compelling interest in enforcing criminal law. The state has also created a means for citizens to resolve disputes amongst themselves (to maintain peace), but doesn't have a compelling interest in those types of cases. That's why the state provides lawyers to prosecute in criminal cases, but in a civil case the plaintiff hires their own lawyer. It has to do with whether or not the government feels they should intervene.
                      "If you believe, take the first step, it leads to Jesus Christ. If you don't believe, take the first step all the same, for you are bidden to take it. No one wants to know about your faith or unbelief, your orders are to perform the act of obedience on the spot. Then you will find yourself in the situation where faith becomes possible and where faith exists in the true sense of the word." - Dietrich Bonhoeffer, The Cost of Discipleship

                      Comment


                      • #12
                        Originally posted by Cow Poke View Post
                        Originally posted by Joel
                        In both cases the question is whether the homeowner committed a wrong such that the homeowner should be forced to pay restitution and/or other penalties. Correct?
                        Not really - in the legal case, it's simply whether he was justified in shooting, or should be tried for the criminal offense of murder, manslaughter, or whatever, and face fines or jail time.
                        The CIVIL case would be about restitution.
                        I think maybe you misunderstood me. I understand that the legal repercussions are different (fines or jail in the criminal case, restitution in the civil). But in both cases the question in the trial is whether the homeowner committed a wrong such that legal action should be taken against him. I understand that the different kinds of legal action are divided into civil and criminal, but I'm questioning why that's a good thing.

                        Originally posted by Joel
                        If in the eyes of the law the homeowner committed no wrong, then the answer to both (A) and (2) would be "no."
                        No, even IF the homeowner was not charged with a crime, or if he was charged, but found not guilty, there is STILL a possibility of a civil suit on a totally different track.

                        Let's say that the police found that he acted prudently, believing that he was in fear for his life and acted appropriately within the confines of the law.
                        They can elect not to charge him for an offense.
                        They can elect to refer it to a grand jury.
                        The grand jury can "no bill" him, or refer it for trial.
                        It can go to trial and he can still be found not guilty.

                        HOWEVER, the rules of evidence for a civil trial are different, burdens of proof are different, and a grieving family could argue the extenuating circumstances that the homeowner "knew or should have known" that it was just a confused man trying to get into what he believed was his own home.
                        You answered "No," but I don't see how your explanation contradicts what I said. In the civil case too, if in the eyes of the law the homeowner committed no wrong, then the family is not legally eligible for a wrongful death award. In a civil case, the judge instructs the jury regarding the law, including what is the statutory criteria for what constitutes the claim in question, such as "wrongful death". And the jury is told to judge the facts whether the defendant's actions meet that legal definition of "wrongful death". The jury is instructed that if it doesn't meet that definition, then they cannot award anything. There is no award given in the civil case if it is found that the defendant committed none of the wrongs (as defined by law) alleged by the plaintiff.

                        Now I understand that the legal judgement of wrong done is judged independently in the two trials. And I understand that having two trials can make sense when there are different claims/accusations being made. But that doesn't seem to imply that any given two accusations should be classified differently (as crime vs not-crime). And if the accusations are the same, then it doesn't seem to make sense to have two different trials. Even in a single criminal trial there can be a question of how to classify the act (e.g., whether an act is first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, negligence. These have different criteria and different legal repercussions.)

                        I also understand that in the existing system things are different, such as the rules of evidence and burdens of proof. What I'm asking is why should they be different.

                        Comment


                        • #13
                          Joel, in the criminal case, the focus is on "did the homeowner act lawfully". In the case I presented, he almost certainly would not even be charged with a crime. Therefore, there's not even a "not guilty" verdict. Even if he were charged with a crime, it is most likely the grand jury would "no bill" him. Again, there is not a "not guilty" verdict, and no jury hears the actual case. In effect, there is no "offense".

                          In the criminal case, the offense (killing somebody) is a "crime against the state", or society as a whole. The state brings the charges, and the defendant (the homeowner) is entitled to a lawyer even if he can't afford one.



                          In the civil trial, the focus is on "Daddy is not coming home anymore and can't work to support our family and that mean man shot him". The suit is brought by the wronged party, not the state. The remedy sought is not punishment or jail time, but monetary compensation.


                          The man is not criminally culpable because the law allows for lethal force in protecting one's domicile, self, family or others.

                          The man COULD be civilly culpable because - regardless of the circumstances - the man caused a family (in this case) pain and suffering, loss of income, loss of support, etc..... the "preponderance of evidence" is the criteria, and it might be argued (and proved to the jury's satisfaction) that the homeowner "knew or should have known" that the man who was shot was drunk, or that there was time to call 911 and wait for police, or the homeowner could have "shot to wound" or used a baseball bat instead of a gun... all kinds of arguments.

                          As to your argument....
                          In a civil case, the judge instructs the jury regarding the law, including what is the statutory criteria for what constitutes the claim in question, such as "wrongful death". And the jury is told to judge the facts whether the defendant's actions meet that legal definition of "wrongful death". The jury is instructed that if it doesn't meet that definition, then they cannot award anything. There is no award given in the civil case if it is found that the defendant committed none of the wrongs (as defined by law) alleged by the plaintiff.


                          Think about that - in the case of the woman in Albuquerque who sued McDonald's and was awarded nearly $3M because she spilled hot coffee in her lap.... did McDonald's do anything illegal? The argument was simply that McDonald's should have warned her that the coffee was hot, and that it was hotter than coffee served at other establishments. Did anybody have to prove that McDonald's did anything illegal?
                          The first to state his case seems right until another comes and cross-examines him.

                          Comment


                          • #14
                            Originally posted by myth View Post
                            The law where I live does make the distinction between theft and civil matters. Withholding $200 million that someone is contractually owed is not the same thing as theft at all. The law says...
                            Yes, the law currently makes that distinction. The question is why is that a good thing? It seems bad to me.

                            In your example, the person did not take or remove anything, they've simply not given the other party the money as per their agreement. Basically, it goes to the mens rea of the person committing the act. One act is considered criminal because legislatures (and the courts) have decided there is criminal intent on the defendant's part. Withholding the money in your example probably occurred because the guy with $200 million felt the other party didn't properly fulfill their side of the contract, and thus he wasn't obligated to pay. In his mind, he's not doing anything wrong. And thus the reason for civil suits. There is alleged wrongdoing, but no criminal act or criminal intent so it is dealt with by other means.
                            Is mens rea the root distinction between criminal and civil? That seems like a more reasonable distinction to make. For example if you took someone else's property because you honestly thought they were being offered free for the taking, or you grabbed someone else's purse thinking it was your own, then it could be classified as not-a-crime, and yet could still mean you owe 'damages' (e.g. return the property plus interest). Yes, that could be a reasonable distinction.

                            Is that always the distinction that the law makes? E.g., suppose someone beats someone else with a tire iron, and there is both a criminal battery trial and a civil battery trial. Is the civil battery trial really about the idea that the accused only accidentally beat the guy with a tire iron? Or thought it would be not wrong to beat the guy with a tire iron?


                            In my hypothetical, however (and I do have a related specific example in mind), there is intent to knowingly do wrong. An employer willfully withholds $200 million that had already been earned by a group of employees. The employer's intent is to wield it as leverage over the employees, e.g. promising to pay the employees only if they continued working for an additional x years (reminds one of Laban and Jacob). The possible civil repercussions provide little deterrent to doing this. In fact the employer makes it his standard business practice to not pay what he owes, and most of the time gets away with it. If once in a while, he gets caught, and the penalty is at most to pay what is owed plus interest, that's a small price to pay when he gets away with it most of the time.

                            Of course there is never any way to prove in any specific case that the employer has the intent to do wrong. From what I understand, at least in my state, the only way for it to rise to a criminal charge is if you can prove fraud, and to do that you have to prove that the employer intended to breach at the time that the employer signed the contract. Which is impossible to prove.

                            Comment


                            • #15
                              Originally posted by Cow Poke View Post
                              The man COULD be civilly culpable because - regardless of the circumstances - the man caused a family (in this case) pain and suffering, loss of income, loss of support, etc..... the "preponderance of evidence" is the criteria, and it might be argued (and proved to the jury's satisfaction) that the homeowner "knew or should have known" that the man who was shot was drunk, or that there was time to call 911 and wait for police, or the homeowner could have "shot to wound" or used a baseball bat instead of a gun... all kinds of arguments.

                              As to your argument....
                              In a civil case, the judge instructs the jury regarding the law, including what is the statutory criteria for what constitutes the claim in question, such as "wrongful death". And the jury is told to judge the facts whether the defendant's actions meet that legal definition of "wrongful death". The jury is instructed that if it doesn't meet that definition, then they cannot award anything. There is no award given in the civil case if it is found that the defendant committed none of the wrongs (as defined by law) alleged by the plaintiff.


                              Think about that - in the case of the woman in Albuquerque who sued McDonald's and was awarded nearly $3M because she spilled hot coffee in her lap.... did McDonald's do anything illegal? The argument was simply that McDonald's should have warned her that the coffee was hot, and that it was hotter than coffee served at other establishments. Did anybody have to prove that McDonald's did anything illegal?
                              Just to make things clear, when talking about the "criteria" there is a difference between (1) the criteria of what legally constitutes the particular claim and (2) the standard of proof (e.g. "preponderance of evidence"). When I said "criteria" I meant the former.
                              In these civil cases, there is a legal definition of the particular claims and will have a legally defined test. In both the case of the homeowner and McDonalds, the test is likely has multiple prongs such as:
                              1) Was the defendant negligent (usually meaning something like: would a reasonable person have known the action would wrongfully cause damages and have refrained)?
                              2) Did that action cause substantial harm?

                              The legal definition of the particular wrong is determined by law, and may vary from state to state.
                              Damages can be awarded only if every prong of the test is proven, to the degree set by the standard of proof.
                              In the McDonald's case the accusation was "gross negligence" which was a legally defined wrong. In that case, the jury would have been instructed that if they found that the defendant's actions did not meet the legal definition of "gross negligence" (thus they had not done the legally-defined wrong that they were accused of), then the jury must award no damages. Assuming the jury's verdict was true about the defendant, then McDonalds did do wrong in the eyes of the law, and is forced by the state to pay the awarded damages.

                              "Gross negligence" is a legal wrong, with legal repercussions, defined by statute. It just happens to be classified as a "tort" rather than a "crime", and thus is treated differently.

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