Tort law ( case study )

1. Tort law(case study)

2. Art. 2034 CC: a civil wrong is “any intentional or negligent fact causing unjust damage to others” Tort law outlines the body of rights, obligations and remedies, which are applied by courts in civil proceedings to ensure relief for people who have suffered harm from the wrongful acts of others. The citizen who sustains injury or suffers pecuniary damage as result of tortious conduct is known as the plaintiff, whereas the one responsible of harm and hence liable of the damage is known as "defendant" or "tortfeasor".A tort can be an intentional or negligent act which gives rise to a legal obligation between parties even though there has been no previous contract or relationship between them.

3. Legal injuries are not limited to physical injuries and may include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights.The plaintiff is entitled of compensation for damage. The damage must be a) “wrongful” and b) connected to the fact committed by causation (i.e. he must show that the actions or lack of action was the legally recognizable cause of the harm).Once the causation has been ascertained, the civil liability of the wrongdoer entails the obligation to pay damages to remedy the injury or loss inflicted. They’re monetary damages and reparation (intended to restore the situation of the plaintiff in the same condition it would have been if the tortious fact had never occurred).

4. The Case -Francesca is a judge in the Civil Section, in Messina. -Patrizia is the president of the Civil Section August 2001 Patrizia asks Francesca to sit in a hearing (udienza) in which a panel of three judges was required. Because one of them was ill, Francesca had to replace him, just for one day. The job of these judges was to decide on a case of bankruptcy , that Francesca had never followed. During the hearing Patrizia, who was also the president of the panel, says that the debt the company had registered was miscalculated, and decides that it should be reduced by 10 million Euros. Nobody objects this decision, so the panel resolves for the reduction. In this way the bank doesn't go bankruptcy.

5. November 2006 Patrizia and other people were arrested by police, who was inquiring into a mafia investigation. Francesca found out that there is also an investigation against her and the third judge of the panel, for "abusod'ufficio". The prosecutor, in fact, thinks that the panel "saved" the company by bankruptcy, because debt were not miscalculated. July 2009 After the end of "indaginipreliminari ", Francesca is discharged of all crimes.

6. During the period of the inquire, many article were published by different newspapers : Newspaper A : " Francesca and Patrizia have been arrested because of an important criminal investigation" Newspaper B " Francesca is investigated with Patrizia for their connection with mafia" Newspaper C " Francesca is investigated with Patrizia, and Patrizia is charged of various crimes, from corruption up to being part of a criminal organization" Newspaper D " Francesca is charged of "abusod'ufficio" in the investigation which brought to the arrest of Patrizia and other people for their connection with a criminal organization"

7. Provisions of the Penal Code that are involved in this case are the following : Art. 319 Pc "Il pubblico ufficiale, che, per omettere o ritardare o per aver omesso o ritardato un atto del suo ufficio, ovvero per compiere o per aver compiuto un atto contrario ai doveri di ufficio , riceve, per sé o per un terzo, denaro od altra utilità, o ne accetta la promessa, è punito con la reclusione da due a cinque anni.” Art. 319 - ter Pc "Se i fatti indicati negli articoli 318 e 319 sono commessi per favorire o danneggiare una parte in un processo civile, pena le o amministrativo, si applica la pena della reclusione da quattro a dieci.

8. Se dal fatto deriva l'ingiusta condanna di taluno alla reclusione non superiore a cinque anni, la pena è della reclusione da cinque a dodici anni; se deriva l'ingiusta condanna alla reclusione superiore a cinque anni o all'ergastolo, la pena e della reclusione da sei a venti anni” "A public official or a person in charge of a public service, causes the giving or promising, for his/her own or another’s benefit, any undue pecuniary or other economic advantage as consideration for his/her unlawful intermediation with the public official or the person in charge of a public service, or as a remuneration for such public official or person in charge of a public service in order that such public official or person in charge of a public service acts in breach of his/her official duties or refrains or delays from acting in relation to the performance of his/her official duties, may be punished with imprisonment for a term of one to three years."

9. Art. 416- bis Pc"Mafia-type association“ "Chiunque fa parte di un'associazione di tipo mafioso formata da tre o più persone, è punito con la reclusione da tre a sei anni. Coloro che promuovono, dirigono o organizzano l'associazione sono puniti, per ciò solo, con la reclusione da quattro a nove anni. L'associazione è di tipo mafioso quando coloro che ne fanno parte si avvalgono della forza di intimidazione del vincolo associativo e della condizione di assoggettamento e di omertà che ne deriva per commettere delitti, per acquisire in modo diretto o indiretto la gestione o comunque il controllo di attività economiche, di concessioni, di autorizzazioni, appalti e servizi pubblici o per realizzare profitti o vantaggi ingiusti per sé o per altri."

10. "Any person participating in a Mafia-type unlawful association including three or more persons shall be liable to imprisonment for 5 to 10 years. Those persons promoting, directing or organizing the said association shall be liable, for this sole offence, to imprisonment for 7 to 12 years. These provisions also apply to the Camorra and to any other associations, whatever their local titles, seeking to achieve objectives that correspond to those of Mafia-type unlawful association by taking advantage of the intimidatory power of the association.” Art. 323 Pc "Il pubblico ufficiale o l'incaricato di un pubblico servizio, che, avendo per ragione del suo ufficio o servizio il possesso o comunque la disponibilità di danaro o di altra cosa mobile altrui, se ne appropria, è punito con la reclusione da quattro a dieci anni. Si applica la pena della reclusione da sei mesi a tre anni quando il colpevole ha agito al solo scopo di fare uso momentaneo della cosa, e questa, dopo l'uso momentaneo, è stata immediatamente restituita"

11. DifferencebetweenTortlaw and Criminal law“In the beginning, crime and tort were not sharply distinguished. At early common law, a victim could pursue justice for the same wrongful act either through a forerunner of criminal law or through a forerunner of tort law. But over time, criminal law and tort law have evolved to encompass a number of distinctive and contrasting features. The following features are especially salient:(1) The state prosecutes violations of criminal law. A victim's consent is neither necessary nor sufficient for a prosecution to be brought. In tort law, by contrast, the victim decides whether to bring tort claim and is free to choose not to do so.

12. (2) Tort law typically requires harm as a prerequisite to a remedy. Criminal law does not. Specifically, criminal law punishes not only: (a) Acts that are harmful to others, but also: (b) Acts that are harmful only to the one punished; (c) Dangerous acts that have not yet caused harm; and (d) Acts that the community considers immoral, even if the acts are not "harmful" in the narrower sense of the term. By contrast, tort law mainly provides a remedy for harmful acts, not for acts that create risks of future harm, and not for acts that are considered immoral but not harmful. (3) Criminal law often imposes more severe sanctions than tort law, such as loss of liberty or even life.

13. (4) Criminal law, in theory at least, contains a proportionality principle, requiring that the punishment "fits" the crime. Punishment should be proportional to the culpability of the actor and the seriousness of the harm or wrong he has committed or threatened. But tort law does not purport to provide remedies proportional to the injurer's wrong: normally, compensation is the remedy, whatever the nature of the tort or wrong. (5) Criminal law requires a greater minimal level of fault before liability will be imposed than does tort law. This is a very crude generalization, with many exceptions. Still, the minimum fault requirement tends, in criminal law, to be something like gross negligence or even recklessness, while in tort law, ordinary negligence usually suffices.

14. CATEGORIES OF TORTS: In law there are various categories of torts, among which: • Negligence • Intentional • For Nuisance • For Defamation • Business Torts

15. Negligence Negligent torts are the most prevalent type of tort. Negligent torts are not deliberate actions, but instead present when an individual or entity fails to act as a reasonable person to someone whom he or she owes a duty to. The negligent action found in this particular tort leads to a personal injury or monetary damages.

16. IntentionalTorts Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. An intentional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy the intent requirement. Causation can be satisfied as long as the defendant was a substantial factor in causing the harm.

17. Nuisance "Nuisance”istraditionallyusedtodescribeanactivitywhichisharmful or annoyingtootherssuchasindecentconduct. -Nuisancesaffect private individuals (private nuisance) In a private nuisance, a defendantengages in some activitythatinterfereswith the right toenjoyhisproperty. -General public (publicnuisance). In a public nuisance, the defendant's actionseffect a large or indefinite numberof people, suchas the community as a whole.

18. Defamation Defamationistarnishing the reputationofsomeonebymaking a factualassertionforwhichevidencedoesnotexist There are twotypes: slander and libel. Slanderisspokendefamationwhilelibelisprinted or broadcast defamation. Business torts Business torts are not committed against persons or property. Rather it is harm done to the organization’s intangible assets. Ex: one party unfairly interferes with another’s business Business tort claims may be pled either by the plaintiff or by the defendant as a counterclaim. Because many jurisdictions allow attorneys’ fees and punitive damages to be paid to the prevailing party

19. Defamation Defamation—also called calumny, vilification, or traducement—is the communication of a false statement that harms the reputation of an individual, business, product, group, government, religion, or nation. Most jurisdictions allow legal action to deter various kinds of defamation and retaliate against groundless criticism. Under common law, to constitute defamation, a claim must generally be false and have been made to someone other than the person defamed. Some common law jurisdictions also distinguish between spoken defamation, called slander, and defamation in other media such as printed words or images, called libel.

20. Francesca can “sue” the newspapers for defamation, under tort law if the information they conveyed through a printed media were false. Francesca in this case needs to prove that the newspaper conveyed false information to their readers, and damaged her. She can not sue D, which gave a correct information, while she can sue A and B, for sure. For C, it is discussed to which extent the newspaper had do “differentiate” her position in the proceeding from the one of Patrizia.

21. Francesca was never arrested so this information is not only false but it also damages Francesca’s image. Newspaper D instead affirmed that “Francesca is charged of ‘abuso d’ufficio’ in the investigation which brought to the arrest of Patrizia and other people for their connection with a criminal organization”. Francesca was actually never “charged”, but she was only under investigation. So this information is false and it damages Francesca’s image as the one above stated.

22. Alejandra Aguilar Roberta Nesti Jasmin Piccini Giovanni Trappolini Federico Fiore Giovanni Ioni Marco Cavarocchi Z.