This article is written by Gautam Badlani, a student at Chanakya National Law University, Patna. This article examines the functions and structure of Congress. It highlights the composition and role of each chamber of Congress and the rights, powers, and privileges of the Congressmen. Moreover, the article examines the implied, specific, and inherent powers of the Congress and also draws out the constitutional limitations of the powers of the Congress.

It has been published by Rachit Garg.

Introduction

The US Congress is a unique and powerful legislative body that plays a major role in the functioning of the United States. It is composed of two chambers, the House of Representatives and the Senate, and has exclusive powers to make laws, confirm executive appointments, and set the budget. This article will explore the history of the US Congress, its powers, and its role in the American political system. It covers the qualifications and functions of the members of the Congress and analyzes landmark judgments relating to the privileges of the Congressmen. The article further comprehensively analyzes the different powers of the Congress. 

The Congress : an overview 

The US Congress is the legislative branch of the federal government of the United States. It is bicameral, meaning it is composed of two chambers: the House of Representatives and the Senate. Congress is responsible for making laws, confirming executive appointments, setting the budget, and declaring war. The US Congress has a long and rich history, stretching back to the Constitutional Convention in 1787.

Article 1 of the Constitution stipulates the composition of Congress. The Article states that all legislative powers shall be vested in Congress. The total number of voting members in Congress is 535. 435 members belong to the House of Representatives and 100 members belong to the Senate.

The United States Congress is responsible for making laws that govern the United States and its citizens. It is the only branch of government with the power to pass laws, and it must do so with a majority vote. Congress can also confirm executive appointments and set the budget for the federal government. It is also responsible for declaring war, although, in recent years, this power has been delegated to the executive branch.

The US Congress is also a unique body and is composed of two chambers. The House of Representatives is the lower chamber and is composed of 435 members who are elected every two years by the citizens of the United States. The Senate is the upper chamber and is composed of 100 members who are elected to six-year terms. 

House of Representatives

The House of Representatives is the lower chamber of the US Congress and is composed of 435 members. These members are elected by the citizens of the United States every two years. It is pertinent to note that the Congress has six non-voting members who represent the District of Columbia, the Commonwealth of the Northern Mariana Islands, the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, and American Samoa.

The number of Representatives from each state is determined by its population; the more populous a state is, the more Representatives it has. Each state is guaranteed at least one representative. The seat allocation among the states is reapportioned after every decennial census based on the population of the states.

When any vacancy arises in the House of Representatives, the executive issues the Writs of Election to fill the vacancies. The members of the House chose the Speaker and other officers of the House. The Speaker is chosen from among the 435 members of the House. The speaker and minority and majority leaders play a vital role in the functioning of the House. 

In order to be eligible to be elected as a member of the House of Representatives, a person:

• must be at least 25 years of age,
• must be an inhabitant of the state which he represents,
• must be a citizen of the United States for at least 7 years.

The House of Representatives is responsible for introducing and passing bills, which are then sent to the Senate for consideration. The House of Representatives has the power to impeach federal officials, including the President. It is also responsible for electing the Speaker of the House, who is the leader of the House of Representatives and third in line to the presidency.

Committees

The House of Representatives is divided into several committees or groups, and such committees are responsible for performing specialized functions. They perform tasks such as holding hearings, regulating the procedure of the House, etc. 

Moreover, most of the bills are first referred to a committee, which prepares a report on the bill. Thereafter, the bills are presented before the full House for voting. The committees may also propose legislation that has not been formally introduced as a bill before the House. This happens when the committee is of the opinion that the legislation would be in the public interest. Every committee has its own budget and procedures. These committees are constituted for a special purpose and for a limited period.

Need for reforms

With respect to the size of the House, the Constitution only dictates that the total number of seats should not be less than 65, and each state is guaranteed at least one seat in the House. The Constitution also suggests that the intention of the makers was that the number of Representatives from each state should be determined on the basis of the population of the state.  

Thus, it is necessary that the total membership of the house be routinely revised on the basis of the populations of the various states. However, the last revision took place in the year 1929, when the size of the House was fixed at 435. The Permanent Apportionment Act of 1929 froze the House membership as determined by the 1910 census. 

It is often argued that there is a need to reform the size of the House on the basis of the current population of the various states. The 435-member cap causes many problems. The Representatives are more burdened as they represent more people than in 1929. Moreover, as the members of the House represent a large number of people, they have to prioritize the interests of certain sections of their constituency over those of other sections. They are unable to give adequate time to the demands of all the people they represent.  If the total number of seats is increased, more people can present their grievances before the Representatives. 

Senate

The Senate is the upper chamber of the US Congress and is composed of 100 members. These members are elected to six-year terms by the citizens of the United States. Every senator has one vote. 

One-third of the total members of the Senate are elected every year. The total membership of the Senate is divided into 3 classes, and the seats in one of the classes fall vacant every 2 years. Where any vacancy arises due to the resignation or death of the senator, the vacancy is filled by means of temporary appointments made by the executive. The vacancy is then filled at the next meeting of the legislature. 

As per the US Constitution, each state, irrespective of its size or population, will be represented by two senators. Senate membership is based on the principle of equal representation for all states. All 50 states are represented by two senators each in the Senate. 

The Vice President of the United States serves as the President of the Senate but does not enjoy any voting rights. The Vice President will only vote where the Senate is equally divided on any issue and is unable to reach a decision.

In order to be eligible to be elected as a senator, a person must fulfill the following criteria:

• The senator must be a citizen of the United States for at least 9 years.
• The senator must be at least 30 years of age.
• The senator must be a resident of the state which he represents in the Senate. 

The fact that the minimum age to be elected as a senator is 30 years old ensures that the senators are mature enough to discuss the complex problems that come before them. Moreover, the requirement of being a citizen of the United States for a minimum of nine years ensures that foreign-born Senators understand the aspirations and needs of the people of the United States.  

The Senate is responsible for considering and passing bills, which are then sent to the President for signature. The Senate also has the power to confirm or reject executive appointments and ratify treaties. It is also responsible for trying to impeach federal officials, including the President.

Elections  

The House of Representatives and Senate hold elections every two and six years, respectively. These elections are held on the first Tuesday after the first Monday in November. After the elections are held, the newly elected members of Congress are sworn in and begin their terms.

The procedure for the election of members of the House of Representatives and the Senate varies from state to state. Article 1, Section 4, confers the power to the states to determine the election system by which they choose their House Representatives and Senators. The states have the power to decide on the place, time, and manner of electing the Representatives and the Senators. However, Congress can overrule the decision of the states and alter the manner and timing of the election. Congress cannot alter the place of the election. 

House of Representatives 

Unlike the Senate, which is a continuing body, the members of the House of Representatives contest elections every even year.

Most states elect their representatives by the plurality method. Every citizen of the state has one vote, and the candidate who receives the most votes wins the election. Hence, the candidate who secures the most votes wins the election, even though the candidate may not have been able to secure 50% of the votes.  

However, certain states have their own election system. States such as Georgia and Louisiana have a two-round runoff election procedure. Under the system, if no candidate secures a simple majority in the first round, then a second round of voting is held. Generally, the 2 highest-scoring candidates, or those who secure more votes than a fixed proportion, advance to the second round.  The winner is chosen after the second round of voting.

Senate

Prior to the 17th Amendment, the senators were nominated by the state legislatures. However, the 17th Amendment mandated that the Senators should be directly elected by the people of the states. Thus, senators are now directly responsible for the people in their constituency. It should be noted that in Senate elections, the constituency is the entire state, whereas the constituency for House Representatives is their individual district. As a result, Senators have a much larger constituency than House Representatives. 

The direct election of the senators keeps a check on corruption. Moreover, under the previous procedure, where the Senators were nominated by the state legislatures, there was the possibility of a post lying vacant due to deadlock in the legislature. However, the introduction of direct elections left no possibility of such a deadlock. 

The 17th Amendment is, however, criticized on the ground that it disincentivized the Senators from giving greater importance to foreign policy issues. When the senators were nominated by the state legislatures, their understanding of foreign affairs served as a deciding factor. However, with the introduction of direct elections, the Senators became more concerned with domestic problems, as the people were less aware of foreign affairs and focused more on domestic conditions. 

Meetings

The US Congress meets in session every year and is divided into two sessions: the first session begins in January and ends in August, and the second session begins in September and ends in December. During these sessions, Congress holds meetings to discuss and debate bills, confirm appointments, and conduct other business. 

Article 1 Section 4 mandates that Congress has to meet at least once a year. The Article further provides that the Congress shall meet on the first Monday of December but the Congress can fix a different day by law. The provision was amended by the Twentieth Amendment, which provided that Congress shall meet at noon on 3rd January. 

Article 1, Section 5 provides that the quorum of each house shall be the majority of the members. Moreover, the Section provides that the house may authorize a smaller number as the quorum to do business. Each house has the right to frame its own rules and procedures and has the power to punish the members who engage in disorderly behavior. Moreover, the house can also expel a member if two-thirds of the house support such a resolution. 

The House of Representatives as well as the Senate, meet in the Capitol Building in Washington, District of Columbia. Other than the normal sessions, the Congress meets for the following sessions:

Joint Sessions 

Joint sessions of both houses of the Congress take place on special occasions, such as when the President delivers the State of the Union address or when the electoral votes for the presidential elections have to be counted. A concurrent resolution is adopted by Congress for the joint sessions. The Speaker of the House of Representatives presides over the joint session. However, when the electoral votes are to be counted, the President of the Senate presides over the Session as Article 2 Section 1 provides that the electoral votes are to be transmitted to the President of the Senate and then counted. 

Closed Sessions 

Only members of the concerned house are allowed in these sessions. Such sessions are held to discuss matters of importance and confidentiality, such as impeachment, national security-related issues, etc. The members, as well as the staff who attend these sessions, are prohibited from divulging information about the session. Those who violate the confidentiality rules are subject to disciplinary proceedings. The transcript of these sessions is released only after the concerned house votes to release the information. 

Pro forma session 

A pro forma session refers to a brief session of the Congress in which no formal business is conducted. As per the Constitutional mandate, no chamber of Congress can adjourn for more than three days, during the session of the Congress, without the consent of the other chamber. To fulfill this procedural requirement, pro forma sessions are held even if the chamber does not perform any actual business. Both chambers have the authority to hold pro forma sessions. However, such sessions are generally held in the Senate, and since no debate or voting is done during these sessions, they do not last for more than a few minutes. 

Special session 

The President has the power to call special Congressional sessions for the purpose of discussing urgent matters such as war or economic crisis. This power of the President emanates from Article 2 Section 3, which provides that the President may convene the Congress in extraordinary situations or in case there is any disagreement between the two chambers.  

Legislative proceedings

The US Congress follows a set of rules and procedures when conducting its business. These rules and procedures are outlined in the US Constitution, the Rules of the House of Representatives, and the Rules of the Senate.

At the start of each session, the House of Representatives and the Senate pass a set of rules and procedures that govern the legislative process. These rules and procedures are designed to ensure that all members of Congress are treated fairly and that the legislative process runs as smoothly as possible.

The US Congress is also responsible for introducing and passing bills. A bill is a proposed law that must be passed by both chambers of Congress before it can become law. A bill is introduced by a member of either House of Congress. Bills are introduced by members of Congress and are debated and amended in both chambers. In order to become law, a bill must be approved by the majority of the members of both Houses. In the event that one House passes the bill but the other House does not approve it, the bill is sent to a committee comprising the members of both Houses. The committee makes certain changes, and the bill is once again presented before both Houses for approval. 

Once a bill has been passed by both chambers, it is sent to the President for signature. The bill becomes law only after the President gives his assent to it. The President may refuse to sign the bill and exercise his veto power even if the bill has been passed by both Houses of Congress. However, the President cannot veto the bill if it has been passed by a two-thirds majority of both Houses. 

Rights of Members

Members of Congress have certain rights and privileges that are outlined in the US Constitution and in the rules and procedures they pass at the start of each session. These rights and privileges include the right to speak and debate on the floor of Congress, the right to vote on bills and resolutions, and the right to participate in committee hearings.

Members of Congress also have the right to be compensated for their service. They receive a salary, health insurance, and other benefits. By virtue of Article 1, Section 6, members of Congress receive compensation for the services rendered by them and the compensation, as determined by law, is paid from the United States Treasury. 

Additionally, members of Congress are immune from criminal prosecution for their actions on the floor of Congress. The Congressmen are immune from arrest while attending the sessions of their respective chambers. They cannot be arrested while going to and returning from the Congress session. However, there are three exceptions to this immunity from arrest. The 3 exceptions are felony, treason and breach of peace. Moreover, the congressmen cannot be questioned in respect of any speech made by them on the floor of their respective chamber.

Coffin v. Coffin (1803)

It is pertinent to note that even the members of state legislatures enjoy immunity from prosecution for the speeches made by them in the house of the legislature. In the case of Coffin v. Coffin (1803), the plaintiff brought a suit against the defendant for slander on the basis of certain statements made by the plaintiff in the house of the legislature. The plaintiff was a member of the house. 

The Court referred to Article 21 of the Massachusetts Declaration of Rights, which provides that any deliberation, speech or debate in any house of the legislature, cannot give rise to any accusation or prosecution. The Court pointed out that the privilege conferred by this Article is not the privilege of the house; rather, it is the privilege of the individual members. The Court substantially expanded the scope of the privilege and interpreted that the immunity extended to everything said or done by the member while acting as a representative of the people. Even if the member is outside the house but is discharging his functions in executing the commission of the house, then he would be entitled to immunity from prosecution. 

The court noted that the injury to the reputation of a private citizen is of less importance as compared to the need to enable the people’s representatives to discharge their duties without the fear of criminal or civil prosecution. 

Kilbourn v. Thompson (1880)

In the case of Kilbourn v. Thompson (1880), Kilbourn was asked to testify before a Committee of the House of Representatives in relation to an investigation concerning a real estate partnership to which he was a member. However, Kilbourn refused to answer the questions of the Committee, and subsequently, the House ordered the arrest of Kilbourn. Kilbourn was imprisoned for 45 days on the grounds of contempt of the House. Upon his release, he filed a suit claiming damages for false imprisonment. The Supreme Court of the United States held that the House did not have the power to punish the witness for contempt. 

However, with respect to the liability of the members of the Committee, the Court held that the members of the House are immune from any liability arising out of the debate or speech made by them in the House. The members cannot be held liable for any vote made by them or for any action taken by them in the House. The members of the House had only voted in favor of the resolution ordering the arrest of Kilbourn, and they could not be held liable for their vote. 

United States v. Brewster (1972)

It is pertinent to note that Article 1 Section 6 provides immunity to the Congressmen only for purely legislative purposes and not for political activities. In the case of United States v. Brewster (1972), a senator was charged with the offense of accepting bribes. The District Court held that the speech or debate clause of the United States Constitution provided immunity to the Senator for the alleged offense of bribery. A direct appeal was filed against the judgment by the United States before the Supreme Court. 

The Court noted that while the Constitution provided immunity to the Senators from being questioned about the legislative acts undertaken by them or the motivation for performing such acts, the constitutional privilege did not extend to all the activities relating to the legislative process. The Court pointed out that the purpose of the Speech or Debate clause was not to secure the personal benefits of the congressmen but to secure the legislative integrity and independence of the individual legislators. 

The Court also observed that the privilege provided under the Speech or Debate clause of the United States Constitution deferred from the immunity provided to the Parliament under the British system. While the British system confers supremacy on the Parliament, the Speech or Debate clause of the United States Constitution is simply intended to secure legislative independence and does not aim to confer supremacy on the legislature. 

Thus, the Supreme Court reversed the decision of the District Court and held that the Senator was labeled to be punished for the offense of accepting bribery to perform legislative acts. 

Bills and resolutions

Bills and resolutions are the primary tools used by Congress to make laws. Bills are proposed laws that must be passed by both chambers of Congress before they can become law. Resolutions are non-binding measures that can be used to express the opinion of Congress on a particular issue.

When a bill is introduced, it is debated and amended in both chambers of Congress. If it passes both chambers, it is sent to the President for signature. If the President signs the bill, it becomes law. If the President vetoes the bill, it is sent back to Congress and can be overridden with a two-thirds majority vote in both chambers.

A simple majority of both chambers is needed to pass a bill. It is pertinent to note that bills that are aimed at increasing revenue can only be introduced in the House of Representatives. The two types of Bills that are generally presented before Congress are:

• Public bills: Public Bills are those Bills that relate to matters affecting the general public or a large class of citizens. 
• Private bills: Private Bills are those Bills that only affect certain individuals or organizations.

Three types of resolutions are passed by Congress: 

• Joint resolutions: They are similar to bills and require the approval of the majority of both chambers. Once approved, they are submitted to the president and become law after the President’s signature. 

It is pertinent to note that the joint resolutions, which propose constitutional amendments, have to be supported by a two-thirds majority of each chamber. Once these bills are ratified by 3/4th of the states, they become effective and are not submitted to the President for his signature. 

Joint resolutions are generally passed for the purpose of emergency appropriations, amending the Constitution or terminating emergency declarations. 

• Concurrent resolution: The primary purpose of concurrent resolutions is to amend such rules which are equally applicable to both chambers of Congress. These resolutions express the collective opinion of the members of both chambers. Such resolutions are neither sent to the President for his signature nor are they signed by the Speaker of the House of Representatives or the Vice President. These resolutions deal with matters such as setting up of Committees, the printing of documents, etc. 
• Simple resolution: A simple resolution is only concerned with the operation of a single chamber. The simple resolution is passed for the purpose of regulating the internal administrative functioning of the concerned chamber or for expressing the opinion of the house on a non-legislative matter. For example, a simple resolution may be passed to express condolences on the passing of a member of the chamber. 

Powers of Congress

The US Congress is the only branch of government with the power to make laws. This power is outlined in Article I, Section 8 of the US Constitution. Additionally, Congress has the power to confirm or reject executive appointments, set the budget for the federal government, declare war, and regulate interstate commerce.

The powers of Congress can be broadly classified into specific powers, implied powers, and inherent powers.

Specific powers

Article 1 Section 8 of the US Constitution enumerates the powers of Congress. Specific powers of Congress are those 21 powers that are expressly enumerated by Article 1 Section 8. Congress has the power to impose taxes, excises, and other duties. However, any such taxes and duties imposed by Congress have to be uniform across the United States. 

The Congress has the power to borrow money on behalf of the United States, regulate commerce, coin money, establish posts and roads, declare war, raise and support armies, build and maintain a navy, etc.

Moreover, Article 4, Section 3 confers the power on Congress to admit new states into the Union. However, no new state can be created from the territory of an existing state or by the junction of two or more states without the consent of the concerned state legislatures as well as Congress. Article 4 further provides that Congress has the power to make rules and regulations relating to the property of the United States. 

By virtue of Article 5, Congress can propose amendments to the Constitution. So far, 33 amendments have been proposed by Congress under Article 5.

Implied powers

Implied powers refer to those powers which are not expressly conferred on the Congress by Article 1 Section 8 but have been held to be necessary to enable the Congress to perform its functions effectively. The reasoning behind this ‘elasticity clause’ is that the framers knew that the 21 powers enumerated under Section 8 would not be sufficient to enable Congress to address the unforeseen circumstances that it might face in the future. 

The implied powers of Congress emanate from the last paragraph of Article 1, Section 8, which is also known as the ‘elastic’ clause of the Constitution. This clause provides that the Congress shall have the authority to enact all laws that are necessary and proper for the efficient execution of all other powers conferred on the Congress by this Section. This clause thus substantially increases the scope of the subjects on which Congress can enact laws.

The expression ‘necessary and proper’ is highly subjective in nature and has led to many debates and judicial pronouncements. The clause substantially expands the Constitutional powers of Congress. The elasticity clause can also be used to bypass the mandate of the Tenth Amendment, which states that powers that have neither been Constitutionally delegated to the United States nor denied to the States, would be deemed to be reserved for the respective States. However, the elasticity clause makes it difficult to determine the exact measure of powers that the Constitution vests in Congress. 

McCulloch v. Maryland (1819)

In the landmark case of McCulloch v. Maryland (1819), the United States Supreme Court affirmed the doctrine of implied powers and held that Congress does not merely enjoy the power that the Constitution expressly confers on it. The Congress has all the authority it needs to execute the powers conferred on it by the Constitution effectively. 

In this case, Congress had incorporated a national bank. The issue arose as to whether Congress had the power to do so since the Constitution is silent on the creation of corporations as well as the chartering of banks. 

The Court noted that since the elasticity clause was not placed among the limitations of Congress, it should be interpreted to have the effect of expanding the powers of Congress. The elasticity clause confers all such powers on the Congress that are ‘appropriate and legitimate’ to the specific powers of the Congress. It is the people of the country who have conferred sovereignty on the federal government, not the states. 

The Court noted that if the end goal is legitimate and within the bounds of the Constitution, then Congress can use appropriate means, which are not prohibited by the Constitution, to give effect to the end objective. Nothing in the constitution excludes the implicit, incidental, or implied powers of Congress. 

The Congress has the right to control commerce and borrow money, and the power to establish the National Bank is an implied power and not a distinct sovereign power. The Court thus concluded that the federal government has the power to establish a national bank. The decision, in this case, substantially increased the scope of the elasticity clause and continues to be the law of the land. 

Inherent powers 

Inherent powers are those powers that are deemed to be inherent to Congress in its sovereign functions. Inherent powers are not expressly mentioned in the Constitution but are considered to be of such a nature that every sovereign nation in the world is deemed to possess such powers. Since the United States is a sovereign nation, these powers are regarded as inherent to the United States. Examples of inherent powers are the power to regulate the nation’s borders, establish diplomatic relations with other countries, etc.

Implied and specific powers can be regarded as those powers which the states have ceded to the federal government. Inherent powers, on the other hand, can be regarded as those powers which originated when the external sovereignty was transferred by the Britishers to the United States. 

The power to regulate immigration can also be regarded as an inherent power of Congress. While the power to regulate immigration is not expressly provided in the constitution, the courts have held that every sovereign nation has the power to regulate immigration. In the case of Martin v. Griffin (1977), certain sections of the Immigration and Nationality Act of 1952 were challenged as being unconstitutional. The Act excluded the relationship of an illegitimate child with his natural father from the special preference immigration status. While upholding the constitutionality of the Act, the court held that the power to remove aliens is a fundamental sovereign authority of the government. This power can be recorded as an incident of sovereignty. 

Impeachment powers

Article 1 Section 2 confers the power of impeachment on Congress. Congress has the power to impeach the President, Vice-President, federal judges, etc. Some of the reasons for impeachment are treason, bribery, etc. This power has been conferred on Congress to formulate a mechanism for holding the President, Vice-President, and other officers accountable while, at the same time, preventing the courts from deciding on the impeachment of the executive authorities. 

The House of Representatives has the authority to decide whether impeachment proceedings should be initiated. Thus, the House of Representatives enjoys the sole power of impeachment, and it has the discretion to decide when it is appropriate to initiate impeachment proceedings for bribery, treason, or other crimes. If the House is of the opinion that impeachment is called for, then the Senate will decide on the conviction and subsequent removal. 

By virtue of Article 1 Section 3, the Senate enjoys the sole power of impeachment conviction, and the Senators take an oath or affirmation for the purpose of impeachment proceedings. A conviction for impeachment will require the support of two-thirds of the Senators, and the Chief Justice of the Supreme Court presides over the impeachment proceedings against the President. 

It is pertinent to note that the power of impeachment that is conferred on Congress is largely free from checks by any other branch of the government. Thus, the Constitution leaves it at the discretion and judgment of the members of Congress to decide on impeachment issues. The members have the right to voice their opposition to an impeachment resolution. 

Congressional Authority over Federal Courts

Congress has the power to regulate the rules and procedures of the federal court system. This power is outlined in Article III, Section 2 of the US Constitution. Section 2 provided that the Supreme Court has original jurisdiction in matters affecting Ambassadors, public Ministers, and Consuls and in those cases where one or more states are parties. However, in respect to all other matters, the appellate jurisdiction of the Supreme Court is subject to the exceptions and regulations made by Congress. 

Congress can also pass laws that affect the jurisdiction of the federal courts and can impeach federal judges. Congress enjoys the power to determine the jurisdiction of the Federal Courts. Congress can also reduce or expand the jurisdiction of the federal courts by enacting appropriate statutes.

Congress can also create or dissolve federal courts. This power is outlined in Article III, Section 1 of the United States Constitution. This Section provides that Congress shall have the authority to establish federal courts inferior to the Supreme Court. If a court is deemed unnecessary or if the jurisdiction of a court is no longer needed, Congress can dissolve the court. In the case of Daniels v. Railroad Company (1865), the Supreme Court held that its appellate jurisdiction was limited to the extent determined by Congress. Congress gives the Court the authority to exercise appellate jurisdiction.  

Ex parte McCardle (1868)

In the case of Ex parte McCardle (1868), the petitioner was convicted by a military commission for the offense of publishing incendiary and libelous articles. The commission had found him guilty of committing acts that obstructed reconstruction.

The petitioner preferred a petition for the writ of habeas corpus before the Circuit Court. However, his petition was dismissed. Thereafter, he filed a review petition before the Supreme Court under the Judiciary Act of 1789, and pleaded that the Reconstruction Act of 1867 was unconstitutional. The Judiciary Act enabled the Supreme Court to hear habeas corpus petitions filed by federal prisoners. The Congress expanded this jurisdiction of the Supreme Court by the Habeas Corpus Act of 1867

The Congress feared that the Court might hold the Reconstruction Act unconstitutional and thus repealed the 1867 Act, which empowered the Supreme Court to hear appeals from the decisions of the Circuit Courts. The Court held that since Congress repealed the 1867 Act, it lacked the appellate jurisdiction to decide the appeal and thus dismissed the petition. 

Powers denied to Congress

The US Constitution outlines certain powers that are denied to Congress. These powers include the power to pass ex post facto laws, suspend the writ of habeas corpus, and pass bills of attainder by virtue of Section 9.  Congress is not allowed to pass laws that infringe on the rights of the states.

Section 9 provides that Congress shall not have the following powers:

• To suspend the privilege of the writ of habeas corpus. However, Congress can suspend this privilege to safeguard public safety in the case of rebellion and invasion.
• The Congress cannot pass any Bill of Attainder or enact any ex post facto law. Ex post facto laws are those acts which create offenses retrospectively. Thus, Congress cannot pass any laws which make actions unlawful retrospectively. 
• Capitation or any direct tax can be levied by Congress only in proportion to the Census or enumeration that the Constitution directs. Moreover, Article 1 Section 2 provides that any direct tax levied by Congress has to be apportioned among the states. Direct tax includes capitation taxes and taxes imposed on real estate and personal property. 

However, the Sixteenth Amendment provided that Congress could impose a tax on income without any apportionment among the states. Moreover, such taxes are not affected by any Census or enumeration. Thus, even though incomes may qualify as a direct tax, it does not fall under the limitation imposed by Article 1 Section 9.

• Congress cannot impose any tax or duty on the export of any articles from the states.
• The Congress cannot give preference to the ports of one state over the ports of other states by enacting any commercial or revenue-based regulation.  
• The Congress cannot grant any title of nobility to any person. Titles of nobility are titles such as King, Queen, etc. 

The Constitution also puts certain limitations on the powers of Congress. Congress cannot pass any law that infringes on the rights of the people, as enumerated in the Bill of Rights. Thus, the Constitution prevents Congress from infringing on certain individual liberties. Moreover, the Constitution also envisages a system of checks and balances that limits the authority of Congress. The President has the authority to veto any law that has been passed by Congress. The Supreme Court of the United States has the authority to strike down any law passed by Congress that contravenes the provisions of the Constitution. 

In the case of Eisner v. Macomber (1920), Congress had imposed a tax on the stock dividend without apportioning the tax among the states. The Supreme Court had to determine whether such a tax would qualify as a tax on income and thus fall under the scope of the Sixteenth Amendment. The United States Supreme Court defined income as a gain from labor or capital, or both, and profit from the proceeds from the sale or conversion of capital. The Court noted that the tax on stock dividends would be in the nature of a tax on capital gain and thus would not fall within the scope of the Sixteenth Amendment. The Court thus held the taxation of stock dividends without any apportionment among the states to be unconstitutional. 

Powers denied to the States

The US Constitution also outlines certain powers that are denied to the states. These powers include the power to enter into treaties, coin money, declare war, and pass laws that infringe on the rights of the federal government. 

Additionally, states are not allowed to pass laws that interfere with interstate commerce or that interfere with the federal court system. Such powers are mostly vested with the US Congress. 

Article 1 Section 10, provides a list of the powers which are denied to the states. These powers are as  follows:

• The states cannot enter into treaties or alliances
• They cannot coin money or emit credit bills
• The states cannot enact ex post facto laws or Attainder Bills. Moreover, the states cannot confer titles of nobility on any person.
• The states do not have the power to impose any duty on imports or exports without the consent of Congress. Moreover, the proceeds of all the duties imposed by the states on imports or exports will go to the treasury of the United States, and all such duties will be subject to the control of Congress. 
• The states cannot keep troops or warships during peace times. Moreover, a state cannot declare war unless it is invaded or is in imminent danger of invasion. 

The 13th Amendment, prohibited slavery, the 14th Amendment, provided that no state can enact a law that deprives any person of his life, liberty, or property without the due process of law and the 15th Amendment, provided the right to vote to the African American men, and can also be regarded as limitations on the powers of the states. 

Conclusion

The US Congress is a powerful and unique legislative body that plays a major role in the functioning of the United States. It is composed of two chambers, the House of Representatives and the Senate, and has exclusive powers to make laws, confirm executive appointments, and set the budget. This article has explored the history of the US Congress, its powers, and its role in the American political system. Understanding the US Congress and its powers is essential for citizens to engage in informed political discourse and to exercise their rights as citizens of the United States.

The members of Congress enjoy constitutional immunity from being prosecuted for any act done by them while discharging their duty as legislators. However, it is essential to distinguish the acts of the legislators which form a part of the legislative process from those activities which are merely aimed at securing some private benefit or political agenda. The Constitution does not provide absolute immunity to the members of Congress and is aimed at protecting the rights of the citizens by ensuring the independence of the legislature. 

The powers of Congress are certainly not confined within what has been expressly provided in the Constitution. The Congress enjoys several ancillary and inherent powers which enable it to discharge its sovereign and constitutional functions and duties. Congress plays a central role in preventing the concentration of power in the hands of the President. The concept of equal representation for each state in the Senate ensures that the less populated states are not overshadowed by the more populous states. 

Frequently Asked Questions (FAQs)

What is the importance of Congress?

The Congress is one of the three branches of the government, and all the federal law-making powers are vested in the Congress. Thus, Congress alone is empowered to enact federal laws. It is composed of the representatives of the people, and thus, its decisions reflect the collective will of the people. Congress ensures that the laws are in line with the needs and expectations of the people. 

What is the incompatibility clause in Article 1 of the Constitution of the United States?

The incompatibility clause is contained in Article 1 Section 6 of the United States Constitution. The Section provides that no person shall be a member of the executive and legislative branches at the same time. Moreover, no member of the Senate or House of Representatives can be appointed to any civil office under the authority of the United States during the term of his office. This clause is aimed at promoting the principle of separation of powers. Thus, any person holding Office in the United States cannot become a member of the House of Representatives or the Senate at the same time. However, a person may choose to shift from one branch of the government to another. 

Does the President enjoy any implied powers?

The President of the United States has certain implied powers, such as the power to expand foreign policy and enter into executive treaties with other nations. Moreover, the President has certain enhanced powers during crises. For example, the War Powers Act, 1973, conferred significant powers on the President, such as the authority to escalate military actions abroad, etc.

What is the Tenth Amendment?

The Tenth Amendment provides that all such powers which have not been conferred on the national government and which have not been expressly denied to the states would be deemed to be reserved for the states. Thus, the Tenth Amendment confers all the untapped powers on the states. This Amendment is central to the right of the different states to enact their own constitutions. The Tenth Amendment thus protects the state power. 

References

• https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2699185/pdf/nihms94060.pdf 
• https://online.maryville.edu/blog/difference-between-house-and-senate/ 
• https://www.law.cornell.edu/constitution/articlei 
• https://constitution.congress.gov/browse/essay/artI-S1-3-3/ALDE_00013292/ 
• https://constitution.congress.gov/browse/essay/artI-S9-C4-4/ALDE_00013595/#ALDF_00026509 
• https://www.archives.gov/milestone-documents/15th-amendment#:~:text=Passed%20by%20Congress%20February%2026,men%20the%20right%20to%20vote 

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This article is written by Gautam Badlani, a student at Chanakya National Law University, Patna. This article examines the various types of tort laws and how these torts protect the interests of business owners. It also highlights certain landmark judgments relating to economic torts and explains the essentials of various business torts.

It has been published by Rachit Garg.

Introduction 

Business interests are vulnerable to the acts of third parties. The economic interests of the businesses are disrupted by the comments made by third parties or by the interference of other persons in its business or contractual relations. In some cases, the disruptions are intentionally caused with the object of hurting the business interests.

However, the victim business can claim remedies provided under tort law. Torts may be defined as acts or omissions which qualify as civil wrongs and cause harm or injury to another person. A tort is a wrong which causes harm or injury to another person for which the remedy is in the form of damages or compensation. A tort arises when a person breaches the duty that he owes to another person. Civil wrongs result in damages such as personal injury, death, property damages or any other consequential loss. The courts can impose liability for such harm or injury. Liability can be imposed for any injury, that is, breach of legal right, as well as for any damage, that is, loss or damage suffered by the plaintiff. 

Tort laws provide various protections to business interests and ensure that the victim is adequately compensated for his loss. These torts often do not find any remedies in statutes and are based on gradual jurisprudential development. Such torts evolve through legal decisions and practices. 

Economic Torts 

Business or economic torts refer to such wrongful acts which are committed to causing harm to a business. These torts result in loss of profit, reputation or competitive advantage of the victim business. Some examples of economic torts are providing false information or interfering with the business’s future profit prospects.

Tortious interference

When a person wrongfully interferes with the business or contractual relations of a business, it is known as tortious interference. The elements of tortious interference are as follows:

• An intentional act of interference with the victim’s business
• the act must be a proximate cause of the loss to the victim’s business
• Actual loss on damage must be caused to the victim’s business

The tortious interference may affect an existing business interest of the plaintiff or it may affect a probable futuristic economic interest of the plaintiff. For example, the defendant may induce a third party not to enter into a contractual relationship with the plaintiff or the defendant may induce the third party to breach an existing contract that the third party has with the plaintiff. Tortious interference can be classified into three parts.

Disparagement

Disparagement is similar to defamation. Under this tort, a person makes untrue statements about any business or the product or service of the business and such false statements affect the economic profits of the business. 

Contractual Relations

Tortious interference with contractual relations occurs when the defendant intentionally and wrongfully induces a third party to breach its contract with the plaintiff. The essentials for this tort are:

• The existence of a valid contract between the plaintiff and the third party.
• The defendant must have knowledge of such a valid contract and must intentionally and wrongfully induce the third party to breach the contract.
• Such a breach of contractual relations must cause economic damage to the plaintiff. 
• Such breach of contract would not have occurred in ordinary circumstances had the defendant not interfered in the contractual relations. 

It is necessary that the defendant must have interfered in the contractual relations with the intention of causing the breach of contract. Moreover, it is pertinent to note that if the defendant wrongfully induces the third party to breach the contract but the third party nonetheless honors the contractual relationship with the plaintiff, then in such a scenario, the defendant cannot be held liable for the tortious interference in contractual relations. 

Lumley v Gye (1853)

In the landmark case of Lumley v Gye (1853) Miss Wagner was an opera singer who had entered into a 3-month contract with Lumley to sing at Her Majesty’s Theatre. Gye persuaded Miss Wagner to dishonor her contract with Lumley and promised that he would pay her more than Lumley. Thus, Wagner agreed to sing only at the theatre of Gye and disregarded her contract with Lumley. 

The issue that arose before the court was whether Lumley was entitled to claim damages from a third party for interfering with the contract that he had with Miss Wagner. 

The court held that Wagner and Gye were joint wrongdoers in the case and Lumley was entitled to claim damages from them. The Court held that any person who intentionally and/or maliciously persuades another person to disregard his contract of service can be held liable for tortious interference. Such an act of persuasion would prove that the third party intended to cause a loss to the plaintiff by his actions. However, if the third party was unaware of the existence of a contract or did not have the intention to cause economic loss to the plaintiff, then in such a scenario, the third party cannot be held liable to pay damages. 

The court concluded that in the present case, Lumley had a cause of action and Gye was liable to pay damages for the economic loss caused to Lumley by his actions.

ASDI, Inc. v. Beard Research (2010)

In the case of ASDI, Inc. v. Beard Research (2010), the Court of Chancery found the appellants guilty of tortiously interfering with the future business relations of the appellees with certain third parties. However, the Court of Chancery did not find the appellants guilty of tortious interference with the contractual relations of the appellees and the third party, that is, Pfizer. The Court held that since the termination of the contract by Pfizer was lawful, the appellants could not be held liable for tortious interference with contractual relations.

An appeal was preferred before the Supreme Court of Delaware by the appellants. The Supreme Court affirmed the judgment of the Court of Chancery. Additionally, the Court found the appellants guilty of tortious interference with contractual relations between the appellees and Pfizer. The Court held that the lawful nature of the termination of the contract would not bar a claim of tortious interference. The wrongful inducement by the defendant would be the focus of a claim of tortious interference with contractual relations. If the defendant wrongfully induced the third party to terminate the contract, then the defendant would be liable for tortious interference even if the termination of the contract was lawful. The lawful nature of the termination will not diminish the cause of action. Even if the third party has the lawful right to terminate the contract at will, the wrongful inducement by the defendant would qualify as tortious interference. In the present case, Pfizer terminated the contract only after the appellants had tortiously induced him to do so. Hence, the appellants were found guilty of tortious interference with the contractual relations that existed between the appellees and Pfizer. 

Prospective advantage

Tortious interference with prospective advantage occurs where there is no valid contract between the plaintiff and the third party and the defendant interferes with the relationship between them. Under this tort, the defendant wrongfully interferes in the relationship between the plaintiff’s business and a third party with the intention of damaging the relationship and causing economic loss to the business. Such interference may disrupt the potential contract that the plaintiff and the third party may have entered into in the future. 

This tort is also known as tortious interference with business relations. The essentials of this tort are:

• There must be some business relations between the plaintiff and the third party. 
• The defendant must have knowledge of such relation and must intentionally and wrongfully interfere with the relationship.
• Such an unjustified interference must cause economic damage to the plaintiff. 

The burden of proof on the plaintiff under this tort is generally more than the burden in case of tortious interference in contractual relations. This is because a potential interest in an anticipated contract is difficult to determine as compared to a well-defined interest established by virtue of a legally binding contract.

Unfair competition

Under this tort, the defendant causes economic loss to the plaintiff’s business by engaging in a deceptive or wrongful business practice. Examples of unfair competition are misrepresentation and false advertisement. 

The tort law relating to unfair competition helps maintain free and fair competition in the market. The tort law concerning unfair competition serves two purposes. Firstly, it protects the interest of the competitors and secondly, it protects the interest that the society has in fair competition. This tort seems to be inspired by the economic theory of laissez faire. This theory promotes and encourages a free economy with fair competition. 

The tort law is aimed at incentivizing creators and innovators. It provides protection to business owners who invest their efforts and money in developing and improving a product or service. This tort ensures that such business owners are not exploited by the unfair use of their products by others persons.

It is pertinent to note that in many cases, the lawyers prefer to invoke business torts instead of antitrust claims. This is because the burden of proof on the plaintiff in the case of business torts is less as compared to the burden in the case of antitrust claims. Unlike antitrust laws, the plaintiff is not required to establish any competitive injury in case of thought of unfair competition. Economic torts actions are generally less expensive as compared to antitrust claims because there is no expert testimony required in the case of business torts. 

Injurious falsehood

Under the tort of injurious falsehood, the defendant publishes false information relating to the plaintiff or his product and such false publication causes economic damage or loss to the plaintiff. The tort of injurious falsehood has the following essentials:

• The defendant must make a statement about the plaintiff’s business, product or services to a third party. It is pertinent to note that a statement made by the defendant to the plaintiff himself would not fulfill the essentials of injurious falsehood. 
• Such statements made by the defendant must be published. Publication may be in oral or written form.  
• The publication must identify with the plaintiff, either expressly or impliedly.  
• The publication made by the defendant was false. The burden of proving that the publication was false is on the plaintiff. The defendant, on the other hand, may take the defense of the truth of the publication. 
• The defendant made the publication with the intention of causing loss to the plaintiff. The defendant must have a malicious intention behind making the publication. Such malice can be proved by establishing that the defendant knew that the publication of such statements would cause economic loss to the plaintiff. 
• The plaintiff suffered actual economic loss due to such publication. 

The defendant cannot make false comparisons between his product and the products of the plaintiff. Such actions fall within the scope of the tort of injurious falsehood. 

The relief that may be awarded to the plaintiff depends on the type of injury. The plaintiff can claim damages if any actual economic loss has occurred to him. On the other hand, the courts may grant an injunction where the publication has not caused any actual loss but is likely to cause a loss in the future. 

Passing off and deceit 

Under the tort of passing off, the defendant deceitfully attempts to imitate the goods of the plaintiff and tries to convince the public to purchase his goods based on the goodwill and reputation of the plaintiff’s goods. As per the trinity test laid down by the House of Lords in the case of Reckitt and Coleman Products v. Borden (1990), the following essentials must be satisfied to establish the tort of passing off:

• The goods of the plaintiff enjoy certain goodwill or reputation
• The defendant has deceitfully attempted to imitate the goods of the plaintiff such that the general public would likely believe that the goods of the defendant emanate from the plaintiff.
• The plaintiff is likely to suffer some economic loss due to the deceitful representation made by the defendant. 

The tort of passing off originated from the common law and also exists in other common law countries such as the United Kingdom and Australia. However, this tort is also referred to as ‘misappropriation’ in the United States. While both ‘passing off’ and ‘misappropriation’ are similar in nature, the essentials of misappropriation vary from those of tort of passing off. In the case of National Basketball Association v Motorola (1997), the essentials of misappropriation were summarised as follows:

• Some information must be generated by the plaintiff at some expense.
• The information has some value and such value must be time-sensitive
• The defendant must use such information in a manner that it directly competes with the plaintiff’s business
• The free use of the information collected by the plaintiff would disincentivize the production of the product to which the information relates. 

Liability for defective products 

Under this tort, the defendant can be held liable for the damage caused to the plaintiff by his product. Any party across the chain of manufacturing can be held liable under this tort. The essentials for this tort are:

• The defendant must sell a product to the plaintiff and the defendant must be the commercial seller of such product.
• The plaintiff must be the user of the product and must suffer injury due to the product. 
• The defendant must have sold a defective product to the plaintiff.
• Such defect in the defendant’s product must have been the proximate or actual cause of the injury suffered by the plaintiff.

This tort helps in safeguarding the interests of the businesses as the producers’ can also be held liable for any defective goods which are sold by them to the businesses. 

Doctrine of Strict Liability 

As per the Restatement (Second) of Torts § 402A, any person who sells an unreasonably dangerous and defective product to a consumer would be liable for any physical harm caused to the ultimate user. Under this principle, producers can also be held liable for the dangerous goods produced by them and sold to smaller businesses. The two essentials for this tort are:

• The defendant must be engaged in the business of such a product.
• The product must be expected to and must reach the ultimate consumer without any ‘substantial change in the condition in which it was sold.’ 

In such a case, the defendant would be strictly liable for the physical harm caused to the plaintiff(s), irrespective of the fact that the defendant may have taken all reasonable care while making the product. Moreover, even if the product was not sold by the defendant to the ultimate consumer, the defendant would be liable for any harm that his product may cause to the final user. 

Any person involved in the chain of distribution of the defective product may be held liable under the strict liability doctrine. In order to claim relief under the doctrine of strict liability, the plaintiff has to prove two essentials. These two essentials are:-

• The product sold by the defendant must have been inherently defective. 
• The plaintiff must have suffered any injury or damage directly due to such an inherently defective product. 

Landmark Judgments

Mogul Steamship Co v McGregor (1892)

It is pertinent to note that mere loss to competition, which may result in some harm to the plaintiff’s business, would not give rise to any remedy under tort law. In the landmark case of Mogul Steamship Co v McGregor (1892), some steamship companies entered into a collaboration to provide their services at low rates. This caused harm to the plaintiff’s business as the collaboration companies were providing their services at low rates. The plaintiff sought relief from the Court under tort law. However, the Court held that the steamship companies had done nothing unlawful and were merely exercising their lawful rights. If any loss is caused to the plaintiff due to the lawful exercise of legitimate rights by the defendants, then it would not give rise to any remedy under tort law. Moreover, the steamship companies could not be held liable for conspiring against the plaintiff since the defendants had not done anything contrary to the law. 

Tuttle v. Buck (1909)

In the case of Tuttle v. Buck (1909), the plaintiff was a barber who owned and operated a barber shop for about ten years. Thereafter, the defendant opened a barbershop and attracted the customers of the plaintiff, which caused economic loss to the plaintiff. 

The plaintiff contended that the defendant had opened the shop not for any legitimate purpose but for maliciously causing injury to the plaintiff. The defendant was a rich banker who had hired a barber to run his shop and had used his influence to attract the plaintiff’s customers. The plaintiff further pleaded that the defendant had made false accusations and reports against him in order to cause economic loss to the plaintiff. The dependent had used unlawful means to attract the customers of the plaintiff and had opened our shop for the sole purpose of destroying the plaintiff’s business. 

The court noted that a lawful act could not be made a cause of action mainly because it was done with an evil motive. However, where a competitor starts a business not for any profit or monetary gain but for the sole purpose of ruining the business of his competitor and intends to retire from the business once the goal is achieved, then such an act would give rise to a cause of action. In such a case, the defendant would be held liable for an actionable tort because his action would be judged with the motive that actuated him. The Court thus found the defendant liable for unfair competition. 

Goodyear Dunlop Tires Operations, S.A. v. Brown (2011)

The case of Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) explains the extent to which a state can impose its tort law on corporations that are based in a foreign country. 

In this case, two children had died in a bus accident in France and the parents of the children alleged that the accident occurred due to a failed tire. They alleged that there was negligence in the design, inspection and testing of the tire. The tire was manufactured in Turkey. 

The parents of the children sued the company for damages in the North Carolina trial court. The parents of the children sued the corporation which was based in the USA and three of its subsidiaries which were located in Turkey, Luxembourg and France. 

The first issue that came before the Supreme Court was whether the North Carolina court had general jurisdiction over the three subsidiaries of the USA-based parent company. The Court noted that the subsidiaries had no direct connection with the state of North Carolina. The subsidiary did not carry on any business in North Carolina, nor did it hire anyone from the state. The subsidiaries did not advertise their product in North Carolina and their products reached the state through subsidiaries. 

It is pertinent to note that the courts can exercise their jurisdiction over corporations that are based outside the state in two cases:

• Where the defendant corporation carries on systematic and organized business activities in the state. There should be systematic business contact between the concerned corporate and the state. In such a case, the court has general jurisdiction over the defendant corporation and can exercise such jurisdiction even in relation to such claims which are not directly connected with the corporation’s actions. 
• Even if the corporation is engaged in single or occasional acts in the state, it can still be held liable to answer the suits filed in the state. However, in such a case the corporation cannot be held liable for matters which are not connected with its actions.

The Supreme Court concluded that the North Carolina court had no general jurisdiction to entertain the suit. The Supreme Court denied the right to North Carolina to exercise its long-arm jurisdiction over the defendant corporation’s subsidiaries that were based in foreign countries. 

J. McIntyre Machinery, Ltd. v. Nicastro (2011)

In the case of  J. McIntyre Machinery, Ltd. v. Nicastro (2011), the respondent injured his hand while using a machine that was manufactured by the plaintiff in England. That respondent brought a suit against the plaintiff in the court of New Jersey. The plaintiff sought the dismissal of the suit on the ground that the products of the plaintiff company were sold in the country by a US distributor and that the petitioner company’s officials never attended a trade show in New Jersey. Moreover, only 4 of the petitioner’s products had ended up in New Jersey.

The State Supreme Court held that the courts of New Jersey could exercise jurisdiction over the plaintiff company provided the manufacturer knew or had reasons to believe that his products were sold through a nationwide distribution system and could therefore end up in any state.

Thereafter, the matter went to the US Supreme Court. The Supreme Court held that none of the petitioner’s activities indicated that the corporation intended to benefit from the protections granted by the state’s laws. In such a scenario, the state court could not exercise its jurisdiction over the rights and liabilities of the petitioner corporation. The court held that exercises of jurisdiction by the state court violated the due process clause of the Constitution. The state court could exercise its jurisdiction over the petitioner only if the petitioner purposefully invoked the privilege of conducting its activities within the state and availed the rights and privileges conferred by the state laws. 

In the present case, the petitioner company had no office or employees in the state, nor did it advertise its product in the state. It did not pay taxes in the state and had no contact with the state. Thus, the New Jersey state courts did not have any jurisdiction over the petitioner company. 

Secretary of State for Health v. Servier Laboratories Ltd (2019)

In the case of the Secretary of State for Health and another v Servier Laboratories Ltd and others (2019), the complainant group alleged that the defendants (a pharmaceutical company) had made false representations before the European Patent Office for the purpose of obtaining the European patent for their product. Subsequently, they also made false representations before the English courts for the purpose of enforcing the patent granted by the European authorities. The defendants had approached the English courts seeking injunctions against other pharmaceutical companies. 

The plaintiff contended that deceit on the European Patent Office by the defendants and the subsequent enforcement of the patent adversely affected effective competition in the market of the United Kingdom due to which the plaintiff had to purchase the product from the defendants at a high price. 

The UK Supreme Court pointed out that the primary burden on the plaintiffs was to prove that the alleged deceit by the defendants adversely affected the ability of the plaintiffs to engage with the third parties. This essential is known as the dealing requirement. 

The second essential to be proved by the plaintiffs was the instrumentality requirement. The claimant group had to establish that some damage had been caused to them due to the unlawful actions of the defendants. 

The Court pointed out that the plaintiffs failed to provide the dealing requirement. The plaintiffs pleaded that they should be entitled to relief since they had proved the instrumentality requirement. However, the Court pointed out that the instrumentality requirement was a weak factor that could not be the controlling mechanism to define the scope of the economic tort. If the Court disregards the dealing requirement, then even if the damage is remotely connected with the acts of the defendants, the defendants would be liable under tort law. Thus, the Court denied relief to the defendants.

Conclusion

Tort law does play a very important role in protecting vital business interests from wrongful and unjustified actions of others. These torts ensure that the businesses do not suffer a loss due to malicious or deceitful actions of others. The remedy that can be claimed under these torts depends on the nature and extent of the economic loss suffered by the plaintiff. 

However, business or economic torts are highly subjective in nature. Most of these torts involve a subjective analysis of the intention of the defendant. Moreover, the outcomes of the defendant’s actions may be influenced by a number of unknown factors. Thus, economic torts depend largely on the facts and circumstances of each case.

Frequently Asked Questions (FAQs)

What is the difference between injurious falsehood and defamation?

Defamation relates to the injury caused to the reputation of a living person by the falls and malicious statements of someone else. The tort of injurious falsehood relates to the economic laws caused to a person’s business, products or services. 

What is a long-arm statute?

The long-arm statute is a statute that enables the state court to exercise personal jurisdiction over a foreign defendant. Similarly, the long-arm jurisdiction refers to the jurisdiction by which the state courts can enforce the state law over foreign defendants. The long-arm jurisdiction of the courts may be based on a statute or on the inherent powers of the court. 

The court can exercise this jurisdiction only if the defendant has a direct connection with the state.  

References

• https://www.law.cornell.edu/wex/unfair_competition 
• https://www.libelandprivacy.com/areas-of-practice/injurious-falsehood/ 
• https://www.law.cornell.edu/wex/products_liability 
• https://www.morrisjames.com/blogs-Delaware-Business-Litigation-Report,supreme-court-on-tortious-interference-with-contract 
• https://caselaw.findlaw.com/de-supreme-court/1545973.html 

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This article is written by Ms. Sushree Surekha Choudhury from the KIIT School of Law, Bhubaneswar. The article talks about the Miranda rights in the United States, which arose as a precedent and subsequently became an integral part of all criminal proceedings in the United States.

It has been published by Rachit Garg.

Introduction 

Are you a US resident? Do you know your rights in the States? If yes, you are amazing. If not, now you will. Knowing your rights is not confined to the rights enshrined in the US Constitution and other basic rights as a citizen. It also includes the principles of justice and procedural fairness. It includes the rights of a person when detained by police or any law enforcement officer, which results in curtailing the individual’s freedom in any manner. In other words, the Miranda rights of a person. Arising from a landmark 1966 judgment, the Miranda rights uphold and reaffirm the Fifth Amendment and Sixth Amendment rights of the US Bill of Rights that aims to protect people accused of criminal charges from making self-incriminating statements by reason of not knowing their rights, and also ensures that the due process of law is followed at every stage of the proceeding. Reading their Miranda rights to people in custody has been recognized as a constitutional right. The Miranda rights are essentially focused on providing a just and fair process to be followed, one in which an accused is well informed of their rights before answering questions put forth at him. The famous Miranda rights in the United States are applicable to all US citizens, residents, men and women, juveniles and adults, alike, without any discrimination. These rights constitute certain essential rights that an individual possesses in order to defend their case without prejudice. The US government and the states make no discrimination in ensuring the Miranda rights in the states.

The US Bill of Rights is a cluster of ten amendments that have been brought to the US Constitution to guarantee some specific rights to US citizens and residents. The Bill of Rights guarantees certain rights that are essential to ensuring individual rights are protected in the US. These rights include protection from the federal as well as state governments’ intervention in their exercise. These rights aim to provide substantive equity and procedural fairness in all proceedings in the US courts. They ensure a speedy justice delivery system in the US. They also make provisions for a public trial system to ensure fairness and justice. The US Bill of Rights amendment that ensures speedy and public trials is the Sixth Amendment right, of which the Miranda rights also form a part. Apart from this, Miranda rights are in compliance with the Fifth Amendment rights of the US Bill of Rights. Miranda rights aim to uphold these rights. The Fifth Amendment rights are an essential part of the US Bill of Rights and are famously the most invoked rights in the US. It guarantees a due process is followed to ensure procedural fairness. It protects individuals in custody from making self-incriminating statements by giving them the option and the right to remain silent. It prescribes a grand jury indictment in cases of grievous offenses that involve capital punishment or other serious punishments. The Fifth Amendment also protects against double jeopardy, as it states that no person shall be punished twice for the same offense. 

In this article, we shall learn all about these Miranda rights and the landmark judgment that led to their existence. 

History of Miranda rights in the US

In most countries, the Supreme Court is the apex body to determine cases when they appear as appeals. The decision of the Supreme Court is considered final in appeals for determining the legal validity and correctness of the decided case by the lower courts. The United States is no exception. The US Supreme Court is the ultimate court of appeals in the United States and it regularly hears cases dealing with varied legal issues and the merits of those cases. The US Supreme Court derives its power and authority to deal with these appeals from the US Constitution. Through this power, it keeps a check on the actions of government officials, state governments, law enforcement departments, and other departments in the US. The US Supreme Court has been trusted with the authority to ensure that these departments and their officers abide by and comply with the provisions of the US Constitution and the rights enshrined therein. 

One such historic judgment that put a check on and controlled the indeterminate use of powers and made provisions to ensure justice for the accused during interrogations and stages of the trial was pronounced in the case of Miranda v. Arizona (1966). Arizona is a small state in the southwest region of the United States. Miranda refers to the defendant in the instant case, Ernesto Miranda. Miranda later came to be known for the rights and warnings that were decided in this case. Today, these Miranda rights and warnings are used to refer to the rights and warnings that are read to a person who has been detained in police custody for custodial interrogation. The purpose behind these warnings is to remind people who are to be interrogated about the rights they have during the interrogation. For instance, they have the right not to answer such questions that are of a nature that can be used against them as evidence. 

It is mandatory to read the Miranda rights of an accused before the beginning of formal questioning in a custodial interrogation. A failure to read these rights to the person in custody will lead to the rejection and disregard of all the statements made, questions answered, and confessions made by them during these interrogations. All the shreds of evidence obtained from such an interrogation, which was conducted in the accused person’s lack of knowledge of their rights, shall not be admissible in a court of law and thus will be disregarded. All these pieces of evidence and confessions shall be deemed to have been obtained involuntarily, and without the knowledge of the person making them, their confessions and evidence will be used against them. This evidence will be considered to have been collected without the accused person’s intention to provide it. 

Miranda v. Arizona is considered a landmark judgment in the history of the US because of the impact it had on the laws, regulations, and legislation and their interpretations in the US. Landmark judgments are the ones that set historic precedents that are complied with in the years to follow. The Miranda precedent gave rise to Miranda rights and gave motion to the Fifth Amendment rights of the US Bill of Rights. It prescribed a proper procedure of arrest and interrogation that, when not followed, is considered unconstitutional and involuntary in the absence of complete knowledge. Decisions made by these people, who were deprived of information about their rights during interrogations, are not considered to be well-informed decisions and thus, are liable to be disregarded and thrown away. 

We will learn more about the Fifth and Sixth Amendments of the US Bill of Rights, and the landmark judgment of Miranda v. Arizona in detail in this article to understand Miranda rights better.

US Bill of Rights : the Fifth Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment, US Constitution

The origin of Miranda rights can be traced to elements of the Fifth and Sixth Amendments of the United States Bill of Rights. The Fifth Amendment of the US Bill of Rights protects US citizens against self-incrimination. The Fifth Amendment provides protection to people who have been detained under criminal accusations. The Fifth Amendment provides procedural protection and justice to the accused/person in custody. It ensures that an appropriate procedure of law is followed during the stages of a criminal trial. The Fifth Amendment right can be exercised to protect the life, liberty, and property of individuals. 

The Fifth Amendment states that a person who is accused of a capital or infamous crime shall only be tried before a grand jury. This requirement of grand jury indictment makes an exception for military and naval forces of the state in times of their service, war, or public danger. Further, the Fifth Amendment states that a person shall not be punished for the same offense twice. The Fifth Amendment further protects against self-incrimination, meaning a person cannot be compelled to give statements or evidence that are of a nature that would incriminate them. A person cannot be deprived of their life, liberty, or property without due process of law. Finally, the Fifth Amendment states that the state shall not take away private properties of individuals without providing a just and fair compensation for such taking.  

Grand jury indictment 

The Fifth Amendment is divided into five major parts, or clauses. These provisions guide the Fifth Amendment right guaranteed to US citizens. The first part of this Amendment is the clause of “grand jury indictment.” The prosecution first makes a formal presentation of the case to a grand jury. The prosecution presents evidence to the grand jury. Thereupon, the grand jury determines these pieces of evidence are sufficient. The grand jury, after hearing the prosecution, decides whether a case is made that is to be heard in formal trials or not. The grand jury allows the trial of the case to begin when they are satisfied that it is needed. This is known as an indictment by the grand jury. A grand jury indictment is a right guaranteed to an accused who is alleged to be committing a crime that involves capital punishment or any other form of serious crime. When an accused person is charged with serious crimes, the grand jury indictment guarantees an impartial procedure to protect their rights.

Double jeopardy

Double jeopardy is a part of the Fifth Amendment rights of the US Bill of Rights, which protects an accused from being punished for the same offense twice. It is a right under the Fifth Amendment that no person shall be punished for the same charges twice. However, two different offenses committed by the same person are liable to be punished separately. Hence, the right against double jeopardy is not absolute. It is subject to reasonable exceptions. For instance, when a case is wrongfully decided or there has been a gross violation of the laws and principles of justice, the case can be re-examined without a bar to double jeopardy. The principle of double jeopardy has been part of the US justice delivery system for years to protect the accused from the unfair punishment of getting punished twice for the same offense. 

Right against self-incrimination

One essential part of the Fifth Amendment right is the right against self-incrimination. This is the part that most closely reflects the Miranda rights as well. The Fifth Amendment right against self-incrimination protects a person from making statements or presenting evidence that is of a nature that will incriminate himself. A person cannot be compelled to incriminate himself at any stage of criminal proceedings or trials. This right against self-incrimination is in conformity with the criminal law principle that a person is presumed innocent until he is proven guilty. The Miranda rights arose as part of this right against self-incrimination under the Fifth Amendment. It was prescribed in the case of Miranda v. Arizona (1966), where a person detained by police and served with a custodial investigation was not informed of their basic rights as a prisoner/person under custody. The Court prescribed Miranda warnings, which shall not be infringed by the state and its duty-bearers. Hence, arose the Miranda rights and Miranda warnings. 

We shall learn more about this in later parts of this article. 

Due process of law 

This part of the Fifth Amendment, known as the “Due Process of Law” clause, governs the US justice system and aims to provide substantial as well as procedural fairness in criminal proceedings. It preserves the fundamental rights of every citizen alike, prisoner or otherwise. It states that due process of law must be followed while proceeding with a criminal trial. It states that Miranda rights must be guaranteed to the accused undergoing criminal proceedings. It further states that the rights enshrined in the US Constitution must be abided by while deciding criminal cases. Prescribed standards of law and justice must be maintained at every stage of criminal trials and proceedings. It states that no person shall be deprived of their life, liberty, and property without following the due process of law. 

Just and fair compensation

Though this part has little relevance to the Miranda rights, the principle of just and fair compensation forms a pertinent part of the Fifth Amendment rights. It follows a principle of justice and fairness when the state intends to acquire the private properties of individuals. The state can exercise its power of eminent domain and take properties from private owners for necessary public use. However, in doing so, the state must compensate the property owner for the property that it takes over. Further, this compensation must be fair. Compensation is fair when it meets the actual value of the property in question. Thus, the state must compensate the property owner with a value equivalent to the fair market value of the property.

US Bill of Rights : the Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

The Sixth Amendment, US Constitution

The Sixth Amendment of the US Bill of Rights provides a right to be represented by counsel. It further focuses on the implementation of the due process of law that ensures fairness and justice. It also ensures transparency is maintained in criminal proceedings by implementing a procedure for public trials. The Sixth Amendment focuses on a speedy justice delivery system so that no innocent suffers due to time delays in courtroom proceedings. It guarantees the exercise of one of the Miranda rights of the accused to be represented by legal counsel. The Sixth Amendment states that every person accused of an offense has the right to be represented by a legal attorney. They have the right to seek the advice of their counsel before proceeding with their case. In cases where the accused is financially incapable of hiring a legal representative for himself, it becomes the duty of the state to provide legal assistance to the accused free of charge.

The Sixth Amendment states that it is the right of the accused or alleged offender to be informed of the charges against them. They must know the reasons for their detention in detail. Further, they have a right to confront the witnesses against them in cross-examination. They also have a right to procure evidence and gather witnesses in their favor. Finally, they have the right to adequate and fair legal representation at every stage of criminal proceedings and trials. 

Miranda v. Arizona (1966)

The origins of Miranda rights can be traced to the landmark 1996 judgment of Miranda v. Arizona. In this case, Ernesto Miranda was arrested on charges of kidnapping and rape. After the arrest, a two hours long interrogation took place in police custody in a place secluded from the rest of the world. Thereafter, he was made to sign a written confession, which was used as evidence against him and led to his conviction. However, it later came to his attorney’s knowledge that the accused was not informed of his basic rights as a prisoner before signing the confession. He was not informed about his right to seek legal assistance or his right to remain silent under the Fifth Amendment of the US Bill of Rights. Ernesto Miranda’s court-appointed attorney argued that Ernesto Miranda was not informed of his right to remain silent, to seek legal counsel, or that any confession he makes can and will be used against him as evidence to support his conviction. Therefore, the confession obtained by the police and other officials from Ernesto Miranda has not been made voluntarily. Thus, this information should be excluded from being used as evidence in the instant case. However, the Court did not accept these contentions and convicted Ernesto Miranda, stating that Miranda did not make a request for a personal attorney to be appointed for him during interrogation. This was, however, due to the fact that Miranda was not informed by the police before beginning the interrogation that he has the right to have an attorney appointed for him before he begins answering questions in the interrogation. Thereafter, Miranda’s lawyer filed an appeal with the US Supreme Court. 

A cluster of four cases was filed in total to discuss a similar issue. Apart from the case of Miranda v. Arizona, the other cases were:

Vignera v. New York (1966) 

In this case, Vignera was arrested by the New York police in pursuance of robbery charges against him. After conducting interrogations, he orally admitted the charges and thus, was arrested formally. He was further questioned by an assistant district attorney. This interrogation was recorded and used as evidence against him before the jury. Thereafter, he was convicted of first-degree robbery and punished with imprisonment for 30 – 60 years. This conviction was affirmed without seeking the opinion of the Appellate Division or the Court of Appeals.

Westover v. the United States (1968) 

In this case, Westover was arrested and taken to the local police station on alleged charges of two robberies in Kansas City. The arrest was also requested by the FBI, which wanted Westover because a felony charge had been made against him in California. After the arrest, he was interrogated twice by the police, which was followed by another interrogation by the FBI. He was made to sign two different confessions on account of two different robberies that took place in California. These confessions were used as evidence in trials, and he was convicted of two different robberies with 15 years of imprisonment for each. This conviction was further approved by the Court of Appeals for the Ninth Circuit.

California v. Stewart (1965)

In this case, Stewart was arrested in pursuance of purse-snatch robberies, in one of which a woman died due to injuries inflicted on her during the incident. Stewart was identified as the endorser of one of the stolen cheques in the robbery. The police arrested Stewart from his home along with his wife and also three other people who had visited his house during the arrest. After his arrest, the police put Stewart in jail and interrogated him nine times in the next five days. During the final interrogation, Stewart confessed that he had robbed the lady but stated that he did not intend to inflict injuries on her. The police released the four other people who were detained when no evidence of their connection to the case was found after keeping them for nine days. The confessions made by Stewart were used as evidence against him, and he was convicted of robbery and first-degree murder. He was thereby sentenced to death. It was found that Stewart was not informed of his right to seek legal counsel or his right to remain silent during interrogations. When the case reached the Supreme Court on appeal, the Court reversed the judgment on this ground.

These three cases came to the Supreme Court to decide on the fairness of the decisions and which gave rise to Miranda rights. The question before the Supreme Court was whether the statements made during interrogations in the form of confessions, written or oral admissible in criminal trials against them as evidence. Further, the implementation of the Fifth Amendment rights was in question as the people under investigation were not informed of their rights under the said Amendment.

The Supreme Court held that the Fifth Amendment rights are not limited to the trial stage of criminal proceedings. It is applicable throughout the processes involved in a criminal proceeding, right from arresting a person on an allegation to the execution of the punishment. This includes the stage of custodial interrogation. The Court stated that the protection of the Fifth Amendment is available outside the courtroom as well, in any process that curtails or threatens to curtail a person’s life, liberty, or property. A person cannot be forced to incriminate himself in any of these situations. Therefore, statements made by the accused during interrogation cannot be used as evidence against him unless the accused was informed about his Fifth Amendment rights and the interrogating officer took all procedural safeguards to protect the accused from making self-incriminating statements. 

The Supreme Court stated that a “custodial interrogation” can be seen as any process involving questioning by any officer or personnel of law enforcement of a person who is accused of an offense. This can be at any place and in any form, and as long as it involves the deprivation of the person’s freedom in any way, it is deemed to be a custodial interrogation. Therefore, the above three cases are instances of custodial interrogation. The Supreme Court observed that when a person is not properly and appropriately informed of his rights while in custody, it puts an apprehension of not having any rights in the mind of the accused, and this affects the will of the person making statements. They tend to make statements that are self-incriminatory in nature. Thus, the Court held that a person has a right to know that when he makes a statement that can be used against him in a court of law, he has the legal right to refrain from making those statements. Further, he has a right to seek the assistance of an attorney at every stage of the criminal proceedings. He has the right to remain silent when asked for information that is self-incriminating in nature. 

By stating these observations, the Supreme Court reversed the judgments of Miranda v. Arizona, Vignera v. New York, and Westover v. United States and upheld the judgment of the Supreme Court of California in Stewart v. California, which recognized the rights of the person under custody and reversed the punishment inflicted upon the accused based on statements that were given by him without knowing his rights. The US Supreme Court with a 5:4 majority held that the evidence admitted in the court shall be disregarded and set aside as the information obtained by police was held to be unconstitutional since Miranda was not informed of his rights before making the confessions. A similar stand was taken by the Supreme Court in the cases of Vignera v. New York and Westover v. United States.

This decision also became essential in realizing the ill-trends of obtaining forced confessions by the police and other law enforcement officers from people who are suspects in a crime. This often also leads to punishing the one who is not guilty because they confessed under forceful conditions without knowing their rights. These wrongful convictions lead to losing the spirit of the US justice system and legal framework. The decision in this case also emphasized the importance of having an attorney guide you during custodial interrogation. The presence of an attorney ensures the voluntary nature of the procedure, that the person is informed of his rights, and that the confessions are not obtained forcefully. Most significantly, the Miranda decision became a symbol of justice without any discrimination in the US as it took proper care of the rights of the accused or convict.

This decision gave rise to specific rights that are included in the right against self-incrimination. They are:

• The right to remain silent.
• The right to know that statements made by a person can be used against him in a court of law. 
• The accused in custody has a right to be represented by an attorney.
• When a person is financially incapable of hiring legal assistance in his defense, it is the duty of the state to provide him with legal assistance, free of cost.

Understanding Miranda rights and warnings

The Miranda rights arose as a consequence of the aforementioned decision of the US Supreme Court. The Miranda warnings are issued with the intent to protect against the infringement of individuals’ Fifth Amendment rights by answering self-incriminatory questions. It is pertinent to note that Miranda rights are applicable only after the arrest is made. Questions asked to a person by the police before that person is arrested, such as the basic booking questions do not come within the ambit of protection of Miranda rights. However, this person must be informed that he/she/they can leave at any moment, as the questioning is voluntary. If a person, knowing this, still makes statements or gives information to the police voluntarily, such statements are admissible in a court of law as evidence. 

Therefore, as a general procedure, it is the duty of the interrogating officer or others to read the Miranda rights to the accused before the beginning of the interrogation. In other words, the accused is to be “Mirandized.” The Miranda rights are read as:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

The accused must give a clear and direct answer to this as an affirmation or rejection before speaking further. If the accused wishes for the state to provide them with an attorney, they must give a clear affirmation about the same. Silence cannot be an answer. It cannot be deemed a waiver of the need for legal assistance by the state, as the accused’s silence may mean that they did not fully understand their rights or the question posed to them. If the accused is unable to understand English, their Miranda rights shall be translated to a language they understand and pronounced to them. Such a translation shall be recorded. 

The right to remain silent

A person in custody has the right to remain silent. They can invoke their Fifth Amendment rights and choose to remain silent when a question asked to them is of a nature that can be self-incriminating to them. Thus, as a Miranda right, an accused has the right to remain silent during interrogation and during trials. Such silence shall not be used against them or seen as a reason for creating suspicion about the innocence of a person just because they chose to remain silent. However, if a person remains silent even before they have been Mirandaized (pre-Miranda silence), meaning before their Miranda rights are read to them, in such a situation, the silence can lead to reasonable suspicion. Such silence can and will be used by the prosecution lawyer to prove guilt on the part of the accused. If a person in custody chooses to waive their right to remain silent after their Miranda rights have been read to them, they have to answer all questions put forward to them, and they shall bear the consequences of those answers when these answers are used as evidence against them. 

Anything said can and will be used in a court of law

It is essential that a person who is to undergo custodial interrogation be informed that anything they say can and will be used against them in a court of law. The right to remain silent is attributed to this Miranda warning that when a person makes statements to police or other officials of law enforcement, even after knowing their right to remain silent, any and all statements made by them or questions answered by them can and will be used against them in a court as evidence. When someone, knowing their rights, makes statements, those statements are admissible in court. This is also applicable when a person waives their rights under the Fifth Amendment. These rights are articulated to protect a person from making self-incriminating statements.  

The right to an attorney

The Miranda rights affirm that every person who is in custody or is a suspect in a criminal proceeding has the right to be represented by an attorney. They have the right to seek legal advice and assistance before answering questions in interrogations and have the right to act upon their case on the advice of their attorney. The attorney further assists the accused in the cross-examination of prosecution witnesses. They assist the accused in presenting witnesses in their favor. In cases where the accused is financially incapable of hiring legal aid for themself, it is the duty of the state to provide them with an attorney free of cost. Further, the state must ensure that this appointed attorney is reliable, impartial, and has the best interests of the accused in mind. The police pronounce this as a part of an accused’s Miranda rights, that they have a right to consult their attorney before answering questions asked to them during interrogations. 

Attorney provided by state

As stated above, it is the obligation of the state to provide the accused with an attorney if they cannot do so himself, for financial incapabilities or otherwise. This appointed attorney must act in good faith with the accused’s best interests in mind. The state-appointed attorney shall represent the accused during every stage of a criminal proceeding. These attorneys shall advise the accused before the accused starts answering questions during an interrogation. They shall conduct cross-examination of prosecution witnesses and assist the accused in obtaining witnesses for himself. An attorney is appointed in order to ensure that the person under the judicial custody of the state exercises all their rights in full capacity and understands them well. It is done to ensure impartiality and justice. 

Exceptions to Miranda rights

Mentioned below are the exceptions to Miranda rights:

The public safety exception

There is only one exception to the Miranda rights in the United States is the exception of “public safety.” This is a right limited to specific cases that are of a nature that affects public safety. In these instances, even when a confession or piece of information has been obtained without informing an individual of their Miranda rights, it is still admissible in a court of law. This is when the information is of such a nature that it protects the public interest from imminent danger.

It was seen in the case of New York v. Quarles (1984) that the police obtained a statement from an individual suspected of committing rape and thereby carrying firearms. He was arrested at night at a supermarket that was open to the general public. When the police caught the suspect, they asked him where the gun was, which he answered, and then the gun was found. In this instance, there was no time to read them their Miranda rights. Even so, this was admissible in court as evidence, seeing the gravity of the situation and the need of the hour. Therefore, in situations of public safety from imminent danger or apprehension, Miranda rights must yield to public safety. 

A part of the public safety exception is the emergency exception. In situations of emergency where the police or any law enforcement officer acts on their instinct as there is no time to take a different recourse or to do things differently, and by following the due process of law, the accused cannot take a defense that they were not informed of their Miranda rights and thus, their rights have been violated. For instance, the police reach a crime scene where they find a dead body, and a man is immediately seen running away from that place. The police catch him and find him a suspect. The police find that the person had a weapon with him and immediately ask him where it is. The suspect answers, and this helps the police secure evidence as well as ensure further safety at the crime scene. The suspect also reveals another person who accompanied him, and the police catch him. All these incidents took place in the heat of the moment and as an emergency measure. Therefore, a person cannot assert the defense that these incidents led to their incrimination since they were not informed of their Miranda rights and that they had the right to remain silent. 

Basic interrogation exception 

One exception to Miranda rights is the “basic booking questions” exception. When the police reach a crime scene or place of incident, they sometimes catch suspects to put them under police custody. This is done with the purpose of getting information from them on the situations and circumstances of the case. When the police take a person into their custody, they are required to undergo a formal procedure to make a formal arrest. While doing so, the police have the liberty to ask the person who is to be arrested some basic questions. Questions such as their name, address, their nationality, their profession, date of birth, etc. Certain questions like these are of the nature that aims to gain a general understanding of the person who has been arrested by the police. The basic question exception is applicable at all times, not just at the beginning. This exception is applicable irrespective of the accused’s or arrested person’s right to remain silent. Even when the accused chooses to exercise their Miranda rights, they cannot refrain from answering these basic questions asked to them by the police. Therefore, Miranda rights are no defense for an accused to not answer the basic questions about himself. This is because these questions are in no way of a nature that may incriminate a person or tend to be used against them as evidence. 

These basic questions are also known as “booking questions.” The police need to gather certain information about an individual as and when he is arrested and put under police custody. This is done to maintain records of the person in the police station and for the criminals’ records of the state. Therefore, the accused cannot refuse to answer these questions. In other words, Miranda rights are not available and cannot be exercised against basic questions. Thus, a question about their infringement does not arise in the first place. 

Hence, an exception to the Miranda rights of an accused is the exception of the basic questions, at the booking stage as well as at any stage of interrogation, as long as the questions strictly fall within the category of these exceptions.

Jailhouse informant exception

Another interesting exception to the Miranda rights is the one made for a jailhouse informant. A jailhouse informant or criminal informant refers to a person who is an agent of the state or the government. These people are either undercover/secret agents or are fellow criminals in jail. When fellow criminal acts as an informant, they are known as “criminal informants.” This person does so in exchange for benefits from the state, which are usually not expressed in the form of money. Rather, they do it in exchange for a promise from the state to reduce their sentence. However, a major disadvantage of criminal informants is that they provide misleading information. They inform untrue statements to the government and the state which they claim to have obtained from their fellow criminals. They do so as an attempt to succeed in reducing their sentence with whatever information is available and at the cost of others. In this process, innocents can be unjustly trapped. This occurs at a stage where the court proceedings are ongoing and meanwhile the person is arrested and put in jail. False testimonies are hard to identify, and this is the disadvantage of this procedure when criminal informants testify in court. They are moved by the motive of doing their own good and this ultimately leads to the bad of one who did no wrong. Ironically enough, the court relies on one criminal to help find another; this often creates chaos and injustice that is hard to identify.

There is another form of jailhouse informant, which is in the form of undercover agents or secret agents who can also act as jailhouse informants to extract information and confessions from the accused in jail. These people are paid agents of the government and the state who disguise themselves as criminals in jail. They regularly talk to the criminals in jail and try to extract the truth from them. The criminals often reveal the truth to them as they confess to committing the crime. They do so with an apprehension that they are talking to their fellow inmates. 

The jailhouse informant exception has been made to the Miranda rights in order to make an attempt to gather confessions from an accused. This is a trick that has been used in the American justice delivery system for a long time and has proven effective in obtaining confessions in several instances. The law of the state puts this process as an exception to the  Miranda rights of an individual because there is no coercion by the jailhouse informant on the accused making confessions. They are not forced to share this information but are rather doing so out of their own free will. Thus, the Miranda rights exception for jailhouse informants has been legally recognized and practiced by the states.

Impeachment exception

Yet another exception to the Miranda rule is the exception on the impeachment of witnesses. For instance, when a defendant testifies in a court of law and makes statements that are contradictory to statements previously made by him during custodial interrogations, the exception can be invoked. In this situation, the prosecution lawyer can impeach the defendant’s credibility and statements. The prosecution lawyer can present shards of evidence or statements previously made by the defendant to prove this contradiction. The state and law also allow the prosecution attorney to obtain statements from the defendant in contravention of the Miranda rights he possesses. This is regarded not as a contravention but as an exception to the general rule. The court allows admission of statements obtained in exception to the Miranda rights of the accused when their credibility has been disputed. Though the admissions made by an uninformed or insufficiently informed defendant can not be used against him as evidence in trials, they become admissible in situations like these where their credibility is in question. Such impeachment was allowed by the US courts in cases like Harris v. New York (1971) and Oregon v. Hass (1975).

Apart from these, a routine traffic inspection, and thereby stopping any person and asking questions, is not protected by the Miranda rules. Routine questions asked at any public place or otherwise to gather certain information from a person that in no way incriminates them are also not protected by the Miranda rule. When the accused waives their right to remain silent or refuses other rights offered to them, such as the right to the legal assistance of an attorney, such person can no longer claim their Miranda rights have been violated, as it was them who waived those rights. 

Juvenile’s Miranda rights 

Before the twentieth century, juveniles were subjected to the same procedure of the court and due process as adults in the United States. It was only in the industrialization era that the concept of parens patriae developed, which stated that the state could intervene to protect and ensure child welfare. Juvenile courts were also established in the 1900s. These courts functioned differently from adult courts. They conducted informal proceedings, lacked jury trials, and had several other shortcomings. Major changes came to this system due to the impact of the Supreme Court’s decision in the case of In re Gault (1967). This decision came soon after the 1966 landmark judgment of Miranda v. Arizona. Thus, the impact of this judgment was visible in the 1967 decision. The Supreme Court held in this case that the due process clause of the US Bill of Rights is applicable to juvenile court proceedings as well, in a similar manner as they are applicable to adult court proceedings. The Supreme Court observed that juveniles have the following rights in criminal trials:

1. A right to receive a notice.
2. A right to legal counsel.
3. A right to confront witnesses.
4. A privilege against self-incrimination in hearings that are of such nature.

The right to receive a notice in the case of juveniles is twofold. First, the juvenile must be properly informed about the charges made against him. Further, the juvenile’s parents must be informed that their child has been taken into custody by the police. The juvenile’s parents must be served with a notice regarding the same. The Supreme Court in this case further stated that the juvenile has a right to be represented by an attorney during trials and accompanied by him during interrogations. The attorney shall also advise the juvenile on crucial legal implications governing their case. The Court stated that if the juvenile is unable to secure legal assistance for himself, the Court will provide him with legal assistance by appointing an attorney for him. The Supreme Court also stated in this case that the juvenile will have a right to confront prosecution witnesses and cross-examine them. They also have a right to secure witnesses in support of their case. Thus, the Court ultimately extended the Miranda rights, which were established by the 1966 judgment, to juveniles as well, just the way they are applicable to adults.

The Federal Juvenile Delinquency Code (18 USC § 5033) makes a legal provision for the rules made in the aforementioned judgment. The code states that when a juvenile is arrested by the police, the police must inform him of their legal rights immediately. This shall be done in a language that the juvenile understands. Thereafter, the police must inform about such arrest to the Attorney General and a notice must be sent to the arrested juvenile’s parents, guardian, or custodian. Simply informing them of the arrest does not suffice. The notice must also specify details about the charges made against the juvenile. They shall be informed about the legal rights that juveniles have in defending their case. The Code also states that the juvenile must be taken to the magistrate and their case be presented before the magistrate. The police cannot detain the juvenile for a period beyond a reasonable time before presenting him before the magistrate. 

As a result of the legal implications of the provisions of this Code, the police officer or law enforcement officer in whose custody the juvenile is, as well as the state, is expected to adhere to these rules and fulfill certain obligations in cases dealing with juveniles. 

First, it is the obligation of the state and its officials to make an effort to find out the parents or guardians of the juvenile before they start interrogating him. The state and its officials must act in good faith. In the case of United States v. Burrous (1996), a juvenile was arrested on charges of armed robbery. The arresting officers made several attempts to locate his parents or guardian. He did not give any information to locate his parents or brother, even after asking several times. Soon after, the juvenile waived his Miranda rights and gave a confession. The Court held that this confession is admissible in Court as evidence since the arresting officers, in good faith, made several attempts to locate the juvenile’s parents. Also, he waived his Miranda rights and made the confession voluntarily.

Further, the juvenile’s parents or guardian must be “immediately” informed about the arrest and about the rights that the juvenile has in his defense. The Court held in the case of United States v. John Doe (1984) that even though the arresting officers informed the juvenile’s parents before they began interrogating him, such information and the notice were served three and a half hours after the arrest was made. Therefore, the Court held that this information was not “immediate” as mandated by the Code.

Further, it is the duty of the arresting officer to inform the juvenile’s parents about the arrest. In the case of United States v. Juvenile (RRA-A) (2000), the arresting officer delegated his duty to inform the juvenile’s parents twice. First, he delegated it to an AUSA and then a secretary in the United States Attorney’s office. A delegation is not permitted in juvenile cases, and in the instant case, the juvenile was a foreign national whose parents did not live in the USA. Thus, informing the appropriate foreign consulate was required. As it is an exceptional situation, the Court held that informing the foreign consulate to inform the juvenile’s parents will not be treated as a violation of the due process clause.  In the instant case, because the arresting officer delegated his work twice at the beginning and did not inform the foreign consulate to inform the juvenile’s parents, the Court considered the violation prejudicial and suppressed the juvenile’s confession.

Further, the general rule is that the juvenile must be “forthwith” brought before the magistrate. However, the Court recognizes exceptional situations as fair after looking into the facts and circumstances of the case. In United States v. John Doe, there was a 34 hours delay before the juvenile was presented before the magistrate. However, this delay was due to the non-availability of magistrates. The state agents as well were busy with urgent cases, and the government refused to use the pre-arraignment statements of the juvenile. Thus, the delay was justified and did not constitute a violation of the Code.

Further, the voluntariness of the juvenile’s confession is considered to be there as long as he is not forced by the police to make such a confession. In the case of United States v. Erving (1998), officers stopped questioning a juvenile as he invoked his right to remain silent. However, the juvenile’s mother persuaded him to make the confession to the police. The juvenile’s parents were present throughout the interrogation, and the juvenile himself made the confession after repeated persuasion by his mother. He made the confession without any compulsion on part of the law enforcement officers. Therefore, the Court stated that the confession is admissible as it was made voluntarily and without compulsion.

Finally, a juvenile’s choice to exercise his right to remain silent or to seek legal assistance from an attorney must be stated clearly and directly. In the case of Fare v. Michael C. (1979), the police read his Miranda rights to an arrested juvenile. After this, the juvenile said that he wanted to talk to his probation officer. A probation officer’s duty is to inform the juvenile when and if he gets into trouble. He cannot represent the juvenile or his case during interrogation. Thus, the officers denied the juvenile’s request to talk to the probation officer. After this, the arresting officer read the Miranda rights of the juvenile to him for the second time. This time, he agreed to speak without the presence of an attorney on his behalf. Thus, the Court observed that the juvenile himself agreed to speak without the presence of an attorney, and he never requested to be represented by an attorney even when his Miranda rights were read to him twice. Therefore, the Court considered this a waiver of his rights and stated that neither the Code nor the Miranda rights of the juvenile were violated by the officers.

Therefore, juveniles are guaranteed Miranda rights just as adults, and the exercise of these rights by the juvenile must be guaranteed by the arresting officers and the law enforcement departments.

Miranda rights effect on guilty confessions

Confessions are made at several stages of a trial. The admissibility of these confessions of guilt depends upon the circumstances under which they were made. When an accused makes a guilty confession without knowing about their legal rights, such as the right to remain silent, or before their Miranda rights are read to them, such confessions are not admissible in a court of law and are considered to have been obtained wrongfully and without the accused’s knowledge of their rights. This non-admissibility principle also extends to confessions that are forcibly obtained by the police or other law enforcement officers. This is because a forced confession is not made with the free will of the person making it. It goes against the legal rights guaranteed to the individual in custody. 

When confessions are made in jails, which in reality are confessions extracted by jailhouse informants who are undercover agents of the state and the government, such confessions are admissible in a court of law. This is because the confession was in no way obtained by coercion or the use of force. This is a regularly used method in the United States legal system as an attempt to extract confessions from the accused while they are in jail. A confession made by this method is admissible in a court of law, as the jailhouse informant principle is regarded as an exception to the Miranda rule.

Further, a confession made by an accused out of their own free will is admissible in a court of law. When the accused is well informed of their rights and was not in any way forced to make confessions, yet makes a guilty confession, such a confession is admissible in court and can be used against them in the case. There are instances where an accused decides to waive their Miranda rights. When the accused waives their Miranda rights, they lose their right to remain silent and must answer all questions put forth by them. A confession made in this circumstance is admissible in a court of law. This confession can and will be used against them to support the conviction in their case. A confession can be made either during interrogation or during trial hearings. Thus, a lawfully made confession made following the due process of law and in the absence of coercion or any compelling factor is admissible in a court of law.

Conclusion

It is interesting to know that when the Supreme Court refused to convict Ernesto Miranda because he was not informed of his rights, which later came to be known as Miranda rights, a fresh trial was instituted. He was convicted again for kidnapping and rape, this time while following procedural fairness. After he was released after completing his sentence, he was stabbed to death. The primary suspect in his murder case was arrested. This person chose to invoke his Miranda right to remain silent. He was thereafter released without being charged with the crime. This is how the Miranda rights come full circle when it comes to dealing with criminal cases in the United States. 

A major part of the Miranda rights is the right to remain silent. Every individual has the right to choose to remain silent whenever a question posed to them is of a nature that incriminates them. The right to remain silent is thoughtfully articulated as a part of the Miranda rights because, in its absence, the situation may become such that the individuals give a forced confession or make a confession against their will and out of fear. They will not know their rights and will become victims of forceful interrogation by the police or other law enforcement officers. Another essential part of the Miranda rights is the right to seek legal assistance. Any person in custody has a right to be represented by a lawyer while he is charged with criminal offenses. The Miranda rights make provisions for the same, where this right of a person in custody is recognized by the law. Further, the Miranda rights also guarantee the exercise of this right by making it a state obligation to provide an attorney to the individual who is incapable of hiring one for himself. The right to remain silent and the right to legal counsel are interrelated in such a way that the person in custody has the Miranda right to choose to remain silent until he is accompanied by an attorney. Thus, one right completes another, and in the absence of one, the exercise of the other can become insignificant. The right to seek legal assistance has been given importance because general citizens will not know the legal implications of their arrest, their rights, and the proper conduct to face interrogation. Therefore, the attorney of the accused person helps them to give suitable answers and maintain conduct that will not incriminate them. 

The Miranda rights play a crucial role in ensuring justice and equality in the US. It rightly upholds these values as the Miranda rights are applicable without any discrimination, in the same manner to citizens and non-citizens, men and women, adults and juveniles, etc. Though there are exceptions to the Miranda rights in the United States, none of those exceptions are based on discrimination of any kind. Exceptions to Miranda rights are the public safety exception or emergency exception, the exception for jailhouse informants, the impeachment exception, and the basic booking questions exception. These are genuine grounds for public safety and necessities that the state must make provisions for.

The Miranda rights are part and parcel of the US justice delivery system, and a violation of these rights is unacceptable in US courts. When people in custody are not informed of their Miranda rights, such a defense can be used to deny the decision made in the case. Evidence obtained without informing the suspect of their Miranda rights cannot be made admissible in a court of law. If admitted, and a decision has been made based on such evidence, it is the obligation of the higher court to reverse this judgment and reject the decision made. A fresh trial will follow to ensure a decision based on substantial and procedural fairness and justice. Arising from the landmark 1966 judgment of Miranda v. Arizona, the case has made a significant impact in upholding justice, morality, impartiality, and fairness in the US legal system. Thus, the Miranda rights aim to establish justice and fairness in criminal proceedings in the United States.

Frequently Asked Questions (FAQs)

What is the difference between Miranda rights and Miranda warnings?

The rights that the accused has during interrogations in criminal proceedings, such as the right to remain silent, the right to an attorney, and others, are their Miranda rights. When these rights are pronounced before them by the law enforcement official who intends to interrogate them, they are known as “warnings” or “Miranda warnings.”

When is it required to pronounce the Miranda warnings?

It is required for the police or any other law enforcement officer to read Miranda warnings to a person when:

• The suspect is in custody. The meaning of custody is not confined to jail but extends to any establishment or detainment of a person which is of a nature that curtails their freedom in a significant manner.
• The police intend to interrogate the person in custody. Simple questions made to the suspect before actual interrogation, such as their name, address, etc., are not protected by Miranda rights.

What happens when a person’s Miranda rights are violated?

When it is found that a person’s Miranda rights have been violated, it is the obligation of the judge to exclude admission of the information gathered by such a violation from the trial. If a case has been decided without knowing that the accused person’s Miranda rights were violated, the decision needs to be set aside.

What is the process that follows when the Miranda rights of a person are violated? 

The defendant’s lawyer files a motion claiming the violation of Miranda rights of the defendant. Upon receiving the motion, the judge may order an evidentiary hearing to determine whether the Miranda rights of the defendant were violated. After hearing the contentions of both sides, the judge determines whether a violation has occurred. Thereafter, the judge determines the furtherance of the case in consonance with these findings.

What are the procedural requirements in appealing against the violation of an individual’s Miranda rights?

The defendant’s lawyer must follow the following steps in appealing against the violation of the defendant’s Miranda rights:

• A motion claiming such a violation must be filed in court.
• The motion must be filed in writing.
• The motion must either be filed before the trials begin or at the stage of appeals.
• The motion must contain detailed information about the factual matrix of the circumstances and the grounds stating legal infringement of rights.
• The motion must be supported by evidence and affidavits.

Why the right to remain silent is important?

When a person is caught as a suspect in a crime, it is the duty of the police to do everything in their power to obtain confessions or evidence from the suspect. They may try to trick the suspect into giving statements that will take the form of evidence, without even forcing them to confess. This is where the Miranda rights come into the picture and the reason why Miranda rights were made into law. In situations like these, the person whose questions are being asked by the police can refrain from doing so without the presence of an attorney by their side. Even when a person is innocent, invoking their right to remain silent is always a wise choice in order to prevent himself from falling into a loop without having any mistakes.

If I choose to remain silent, can this be used against me in my case?

At times it may so happen that the prosecution lawyer takes this choice of silence as an opportunity to establish guilt against a person. They may try to portray guilt as the person decided not to speak about it. However, the Miranda rights ensure that when a person chooses to remain silent by exercising their Miranda rights, such silence shall not be used as a defense to establish guilt against the accused. Further, it is advisable that the person being interrogated refuses to speak unless they are accompanied by an attorney. This will make an impression that the accused know their rights instead of making the impression that the person is trying to avoid guilt by remaining silent.

References

• http://www.mirandarights.org/ 
• http://www.mirandawarning.org/whatareyourmirandarights.html 
• https://www.law.cornell.edu/wex/miranda_warning 
• https://www.justia.com/criminal/procedure/miranda-rights/ 
• https://blog.ipleaders.in/overview-miranda-rights-america/ 

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This article is written by Pragya Agrahari of Amity Law School, Lucknow. This article provides a  detailed analysis of professional negligence, its essential elements, examples, defenses, and important case laws.

It has been published by Rachit Garg.

Introduction

Why does a person generally prefer to approach any professional person like surgeons, physicians, lawyers, architects, accountants, or persons related to other professions for any task to be performed? What assurance do these professionals provide to their clients? To answer these questions, first, we have to deal with the definition of ‘professional.’ Though there is no specific definition of ‘professional,’ every professional shares some common characteristics, which are as follows:

1. A professional is one who possesses a special skill to perform some specific task and requires a certain level of learning,
2. They have duties and standards which must be obliged,
3. They must profess reasonable care while performing the task.

People prefer professionals as they have the requisite skill to perform a task which assures them that they will exercise their skill with a reasonable degree of care and caution while performing the task. Thus, there are fewer chances of negligence at the hands of the professionals and in the case where negligence occurs, the client can claim compensation for the wrong of professional negligence under Torts.

What is professional negligence?

Professional negligence refers to negligence committed when a professional fails to adhere to reasonable care toward their client. Every professional has to follow a certain standard of duty that is generally accepted among them. Professional negligence occurs when there is a breach of this duty. In America, this is also known as malpractice. Professional negligence claims are most common against professionals like doctors and lawyers.

America does not have any national uniform law for the regulation of professions. Each of the 50 states and territories has different regulations and standards on this. Professional tort law is an amalgam of state regulations and common law principles and precedents.

Essential components of professional negligence

In the case of Budd v. Nixen (1971), the Court enumerated the important elements which must be present for a cause of action under professional negligence in tort, which are as follows:

1. The duty of the professional to exercise reasonable skill, prudence, and diligence as other members commonly exercise,
2. A breach of this duty by the professional,
3. Damage or actual loss to any person resulting from professional’s negligence,
4. A proximate causal connection between the person’s injury and the professional’s negligence.

These elements must be proved before the court in order to hold the professional liable for professional negligence.

Duty of care

The first element of professional negligence is that there exists a legal duty of the professional towards the client; this duty comes into play whenever a professional relationship is established between a professional and their client. The principle behind this is that each professional, whether it is a doctor, engineer, lawyer, or architect, owes some duty of reasonable care toward their client. This duty of the professional is assumed in the professional-client relationship. But when a professional serves their client outside the professional setting, the assumption of duty of reasonable care does not apply. For example, a doctor who is prescribing medicines outside his professional setting (like a clinic, hospital, etc), or a lawyer giving advice outside his chamber, or place of practice.

The professional has to observe a standard of care towards their client, which means that the professional should act reasonably and provide quality services to their clients. This standard of care varies across different professions and their place of practice. Some have defined their ‘code of conduct’ and standards, while some set the standards based on the typical behavior of the professional. If the professional fails to adhere to these standards, the client gets the right to sue the professional.

Judges generally use two methods to evaluate the ‘duty of care’ of the professional towards their client:

Foreseeability test

A foreseeability test is usually used to determine the cause of the accident that occurred. It basically asks whether the professional who caused such injury could have reasonably foreseen the probable consequences of their conduct. For example, if the doctor has reason to foresee that the patient will die if given a certain dosage of medicine and the doctor negligently gives that dosage, the doctor will be held liable for professional negligence. 

Multifactor test

The multifactor test determines the ‘duty of care’ of the professional by looking into a number of factors, which may include:

1. Nature and extent of damages caused,
2. Was there any chance of taking an alternative action?
3. Cost of taking such alternative action by the professional,
4. Whether such alternative actions would have been safe? 

Breach of duty

The plaintiff must prove that there is a breach of duty on the part of the professional. It means that the plaintiff has to demonstrate that the professional has done some careless action or has not taken certain actions required at that time. It means the professional breached his duty of care by allowing certain dangerous conditions beyond the normal level of risk. This is an important element in determining the negligence of the professional. For example, a chemistry teacher has a duty to warn students about harmful chemicals. If he has not done it, he has breached his duty and, therefore, will be liable under professional negligence.

Damage or actual loss

If the negligent conduct of the professional does not cause damage, no cause of action in tort will arise. “Damage” must mean actual damage, not nominal damages, and it will include both physical and emotional damage. It may be pain or suffering, monetary damages, loss in profit, etc.

In the case of Walker v. Pacific Indemnity Co. (1960), where the defendant, Fulmore, Merill’s insurance broker, “negligently and carelessly” procured a policy with limits of $15000 rather than $50000. Merill’s truck collided with an automobile, causing injury to Mrs. Walker, who sought damages for more than $100000 for injuries caused. Merill assigned this damage against his broker, who caused negligence. The question here was whether there were sufficient damages caused to Merill due to the broker’s negligence. The Court was of the opinion that there was no injury to Merill as a result of the defendant’s negligence until the point that the accident occurred.

Proximate causal connection

Apart from the above elements, it is equally important to prove that the injury or damage caused to the plaintiff is a result of professional negligence. It means that if the professional has not acted negligently, no cause of action will arise. For example, in case the patient dies as a result of the doctor’s negligence, one has to show that the doctor has prescribed the wrong medicines due to which the patient has died.

Categories of professional negligence

Negligence by medical practitioners

Each state in the American federation regulates the activities of medical professionals, including dentists, surgeons, physicians, nurses, etc. Negligence by medical practitioners forms a very large chunk of professional negligence cases. It is commonly known as medical malpractice.

The standard of care followed by medical practitioners is largely regulated by hospitals and professional and academic institutions. These standards vary from case to case basis.

Premises liability of medical professionals

The courts, in many cases, have addressed the issue of whether professional negligence includes the duty to use or maintain medical equipment and hospital premises. In determining this issue, the Court gave two conflicting decisions. In the case of Gopaul v. Herrick Memorial Hospital (1974), a pneumonia patient fell off the hospital gurney when left unstrapped and unsupervised. The Court opined that professional negligence was not committed as the need to strap the patient to the gurney did not require professional skill or prudence. Whereas, in another case of Murillo v. Good Samaritan Hospital (1979), where again the patient fell off the bed at night because the rails of the bed were not raised, the Court determined it a case of professional negligence and disagreed with the proposition laid down in Gopaul case. The Court stated that professional negligence was not about whether the case requires low/high skill but whether the negligent act occurred while rendering services for which the healthcare professional was licensed.

Case of negligent treatment and failure to inform

In the case of Burroughs v. Magee (2002), the defendant Dr. Magee treated Roger Hostetler prior to the automobile accident in which Hostetler hit the plaintiff’s car, which ultimately resulted in the plaintiff’s husband’s death. Prior to the accident, Hostetler, who was also a drug addict, had gone to Magee’s clinic complaining of headaches, persistent weakness, and muscle cramps. Dr. Magee prescribed him medicines that could impair his ability to drive. Moreover, if the two medicines were used simultaneously, the impairment may be enhanced. Dr. Magee failed to warn the patient about these potential risks. The question that arose here was whether Dr. Magee owed a duty to a third party when prescribing drugs to his patient. The court held that although Dr. Magee failed to warn the patients about the risks involved in taking medicines, he owed no duty to the plaintiffs, Burroughs, and her husband.

Negligence by lawyers

Each state maintains the right to license and regulate the conduct, ethics, and discipline of all the lawyers practicing in the country. Although each state has different systems to regulate legal professionals, nearly all jurisdictions follow the standards set by the American Bar Association Model Rules of Professional Conduct. When these rules are violated, the liability under professional negligence arises. It is also known as legal or attorney malpractice.

Lawyers who are experts in their field are expected to exercise their skill and prudence diligently as professed by other members of the same field. Generally, the breach of standard of care is determined by expert testimony in case of failure to exercise such care until the professional negligence is so apparent from the facts of the case that the expert testimony does not require it. 

In the case of Wright v. Williams (1975), the respondent, an expert in maritime laws, was consulted by appellants for acquiring the title of the vessel Kona Sea to use it for carrying out a commercial diving venture. At that time, the amended section of the Merchant Marine Act of 1920 prohibited the use of a vessel for coastwide trade if it had been owned by an alien earlier. It also meant that the section prohibited the use of Kona Sea for the intended purpose as it was once owned by a Mexican national. Respondent, unaware of the intended purpose, arranged the transfer of the title of the vessel. Subsequently, the appellants were charged with the violation of the Marine Act. The appellants sued the respondent for attorney malpractice. The appellants’ contention failed due to lack of evidence or absence of expert testimony to claim that the respondent failed to exercise his duty of due care.

Negligence by architects

Design and real construction professionals such as architects and engineers are also regulated by state laws. They can get a license only after obtaining certain qualifications, such as passing an examination, certifications, or education courses. A specific standard of care to be exercised by the design professionals was laid out in the contract and in addition to it, states’ standards were followed. Claims, generally, are related to property damage and personal injury to the client or non-client as a result of negligence. For example, if, due to the negligence of the engineer, structural damages are caused to the neighboring property, the engineer may be liable for professional negligence. 

Defenses against claims of professional negligence

In order to successfully negate one of the elements of professional negligence to defend against an action initiated under this head, the defendant can use the following defenses to limit or completely eliminate their liability:

Contributory negligence

It is one of the most commonly used doctrines to defend against negligence liability. Contributory negligence occurs when the plaintiff’s own negligence summed up with the defendant’s negligence, causes damages to the plaintiff. For example, in a case where the doctor negligently prescribed the wrong medicines to the patient, which were not harmful unless taken in high dosages, and the patient falls sick after consuming extra dosages of medicine, that was not normally taken. Here, both parties are at fault; the doctor has prescribed the wrong medicines, whereas the patient of his own volition, took the extra dosages without medical advice. Hence, it is a case of contributory negligence. 

In the case of Gravitt v. Ward (1999), the plaintiff, Gravitt, filed a medical malpractice action against Dr. Ward, seeking damages for his negligence as he failed to order a mammogram and diagnose her breast cancer in a timely manner. In fact, the doctor gave a positive diagnosis of non-cancerous ‘fibrocystic changes.’ In response, Dr. Ward filed a defense of contributory negligence alleging that the plaintiff failed to tell him about the lump in her breast and that is why he was unable to diagnose the disease timely. At trial, both parties presented expert testimony supporting their contentions. The trial court allowed the defense of contributory negligence. Plaintiff challenged the decision. Plaintiff insisted that whether she told the doctor about the lump was an issue of primary negligence and not contributory negligence. Moreover, there was no more than a scintilla of evidence that shows Gravitt failed to inform the doctor about the lump, and that too was less serious in comparison to the doctor’s negligence. Therefore, the Supreme Court of Virginia held the decision of the trial court was an error and held that there was not sufficient evidence to hold Gravitt liable for contributory negligence. 

Comparative fault

It is used as an alternative to the defense of contributory negligence and is also known as non-absolute contributory negligence. It seeks to compare the negligence of both the plaintiff and the defendant. If the plaintiff is at fault or at more percentage of negligence, the plaintiff is either barred from claiming the damages from the defendant or his recovery is reduced by the percentage of his fault.

In the case of Blackman v. Rifkin (1988), where the patient was admitted to the hospital in highly intoxicated state for treatment of scalp laceration. The patient was unable to communicate her medical history properly to the medical staff. Also, the patient was showing combative and obstructive behavior, which interfered with treatment and during the treatment, she regurgitated and aspired stomach contents into her lungs which resulted in permanent brain damage. She contended medical malpractice against E.R. Team, the defendants, due to the breach of standards that needed to be followed while treating intoxicated persons. The court allowed comparative negligence defense against the plaintiff.   

Assumption of risk

When the plaintiff is aware of the possible risk involved in any activity but still agrees to proceed with that activity, the plaintiff cannot be able to recover damages from the defendant. For example, if the surgeon beforehand has informed the plaintiff about the possible risks involved in the surgery, and the plaintiff anyways agrees to it, he cannot later claim damages from the surgeon.

In the case of Gross v. Robinson (1920), where the plaintiff took too many X-rays even after the doctor’s warning, the court held that though the plaintiff was warned of the dangers of too many exposures to X-rays by the physician and thus assumed the risk, he did not assume the risk of too many exposures of machine which was not properly working. It means the plaintiff was fully aware of the risk involved in taking too many X-rays. So, if the patient willingly engages in the such act even after the physician’s warning, the physician will not be held liable. But in this case, the X-ray machine was faulty for which the patient had not assumed the risk.

Professional negligence vs ordinary negligence

Ordinary negligence refers to failure to exercise a reasonable amount of care and prudence while performing a certain activity. In order to prove it, one has to show that the defendant’s actions were reckless or careless. It does not involve any special type of relationship between the parties like doctor-patient, lawyer-client, etc. There are many examples of negligence like car accidents, dog attacks, product liability, etc.

On the other hand, professional negligence explicitly involves a professional with set standards of duty and his/her client. In this case, the professional is expected to maintain higher standards of duty of care according to his professional code of ethics or customs, unlike in ordinary negligence, where the person is expected to maintain a general duty of care. It is because the professional has more skill and special knowledge about their field than any other ordinary person. For example, if the drugs prescribed by the doctor cause an allergic reaction in the plaintiff, the doctor may be held liable for professional negligence.

Conclusion

In the case of Flowers v. Torrance Memorial Hospital Medical Center (1994), the Court stated, “With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional ‘circumstances’ relevant to an overall assessment of what constitutes ‘ordinary prudence’ in a particular situation.” It means the professionals are assumed to have higher skills and knowledge in their field than other members of society as they have invested years in learning to use this specialized knowledge. Therefore, they are expected to maintain higher standards of care while performing a specific activity. They attract liability for not exercising their professional skills with due care.

References 

1. https://thelawreviews.co.uk/title/the-professional-negligence-law-review/usa 
2. https://www.insureon.com/blog/professional-negligence-vs-ordinary-negligence 
3. https://www.alllaw.com/articles/nolo/personal-injury/determining-fault.html 
4. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/ 
5. https://www.lalitigationlawyers.com/professional-negligence_2.html 
6. https://www.silverlaw.com/professional-negligence.html 
7. https://www.lexisnexis.com/uk/lexispsl/disputeresolution/document/393747/57SP-H221-F18B-72DT-00000-00/Professional_negligence_claims_overview 
8. https://www.arizonainsurancelaw.com/blog/professional-negligence-vs-ordinary-negligence/ 

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Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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This article is written by Anushka Singhal, a student from Symbiosis Law School, NOIDA. In this article, she discusses vicarious liability under torts in the United States. This article goes through the definition, the concept of joint and several tortfeasors, exemptions to liability and finally arrives at a conclusion. 

It has been published by Rachit Garg.

Introduction 

The word ‘tort’ is derived from the Latin word ‘Tortum’, which means ‘twisted’ or ‘crooked’ act, i.e., a deviation from straight or right conduct.  The main aims of the law of torts are: • To define an individual’s rights and duties in the light of prevalent standards of reasonable conduct and public convenience. • Compensation of victim(s) or their dependent(s). Vicarious liability under torts  makes a person liable for the wrongs of others and provides compensation to the victims. These three ways are- by ratification, by relation and by abetment. Liability by ratification is based upon the maxim- “Omnio Ratihabitio Retrorahitur Et Mandato Priori Oequiparatur”, which means that “every ratification of an act relates back and thereupon becomes equivalent to a previous request.” Herein, a person is said to be vicariously liable for the actions of others if he had ratified the act so done. Liability by relation arises out of the relationship existing between two people. While liability by abetment arises whenever a person abets another to do or omits to do some act. This article explains the concept of vicarious liability, when it can be revoked, discusses the difference between joint and several tortfeasors, liability in case of master-servant, independent contractor and elaborates on certain landmark judgments. 

What is vicarious liability

The concept of liability by relation leads to vicarious liability. Vicarious liability is based on two maxims, “Qui Facit per alium facit per se”, i.e., he who acts through others acts through himself, and the other one is “respondeat superior”, i.e., let the master be liable. While a master is primarily liable for the actions of his or her servants committed while they were working for him or her, this is not the case for independent contractors.

Vicarious responsibility is an obligation imposed on one for the acts of the other based upon the relationship existing between them. While this responsibility’s historical or jurisprudential roots need to be clarified, it has been firmly established in common law for several centuries. The relationship between the two persons can arise by virtue of the following relations- 

1. Master and servant 

2.  Employer and independent contractor

3. Principal and agent

4. Company and director

5. Firm and partner

6.Guardian and ward.

Due to the concept of vicarious liability, both parties become joint tortfeasors, and both of them can be held liable for the loss caused to the victim. In simpler terms, vicarious liability can be explained as a liability on ‘no fault basis’. Vicarious liability is not codified but can be found in the Restatement of Torts, issued by the American Law Institute. 

When does vicarious liability set in 

The setting up of vicarious liability happens due to the following factors- control, compensation (deep pocket theory), deterrence, loss spreading, enterprise liability, and mixed policy. They are discussed as follows:-

Control

It is based on the maxim ‘respondeat superior,’ i.e., let the master/employer be liable. It is because the employer controls the activities of the employee. He is the one who sets the whole activity in motion. A servant does not act for his own benefit or out of his own discretion. He acts on the instructions of the master, thereby making him liable. 

Deep pocket theory

According to this theory, the employer is always in a better position to compensate the victim than the servant, as he has “deeper pockets,” i.e., is financially sound. The loss caused to the victim can be evenly distributed, and the victim should not suffer due to the servant’s incompetency in paying money. In the case of an employer-employee relationship, this theory is applied.  This loss distribution factor between employer and employee has been combined with the enterprise risk management argument. Enterprise risk management is based on benefits and burdens. “He who gets the enterprise’s profit should also bear the loss.” 

Deterrence

According to this theory, making the employer liable would act as a deterrent for both the employee and the employer. The employer would ensure that the employee strictly followed the instructions by making the work environment stricter and ensuring safeguards. The employer knows that he would also be liable for the acts of his employee, so he would ensure that there were no wrongdoings done. The same works for the employee, he would know that his employer would be liable for his wrongs, and thus he has to work in a better manner so as to escape facing the penalties imposed by the employer.

Loss spreading

One more reason for making the master/ employer vicariously liable is loss spreading. It can also be combined with the deep pocket theory. By imposing a duty on the employer, the weight of the accident is distributed among his customers and insurance. The same was properly explained in the case of  Escola v. Coca-Cola Bottling Co.(1944), wherein the Supreme Court of California held that making the employer liable for reducing the loss could easily compensate the victim as he could then obtain the cost from his customers by increasing the price for the service/ product. Even the employers are insured against any such losses and can obtain them from the insurers whenever they are made vicariously liable. An example of third-party insurance on vehicles can be taken to understand this concept. 

Tests to check whether there is an established employer-employee relationship

Following are some of the tests to check whether there is an established employer-employee relationship:-

Control

The master has direct ‘control’ over the servant. He decides the way of execution and gives other important instructions. This is not so in the case of an independent contractor who works according to his own discretion.

Nature of work

The independent contractors are given a one-time contract for the work while this is not so in the case of a master and a servant.

Hire and fire test

If a servant can be directly fired by the master, then the employer-employee relationship is confirmed. 

Mode of compensation

An employee is usually paid a monthly salary, unlike an independent contractor, who is generally paid a lump sum amount. 

Contract of service 

It helps in determining the nature of the relationship between the parties. One can easily decipher whether it is a master-servant, an employer-independent contractor, or an employer-employee relationship. 

When can vicarious liability be avoided

The concept of vicarious liability is not absolute. It can be avoided in numerous situations such as:-  

Frolic and diversion 

The scope and course of employment have to be understood to know what is frolic and diversion. Scope is the ambit within which you can work during your employment, and course is the duration during which you work. The ancillary activities you do while at work fall within the scope of employment. For example- A person ‘B’ has employed a driver to pick and drop him off from his office. Herein, if the driver needs to stop at the gas station to fill up gas and causes an accident on his way to the gas station, person ‘B’ would be liable as it is within his course of employment. It would be assumed that a driver had to do all the ancillary activities related to the maintenance of the car. But if this driver, after dropping off his employer ‘B’ at work, instead of going back to the employer’s home as directed by the employer, goes to the marketplace for his own work and on his way causes an accident, the master ‘B’ would not be held vicariously liable. In this situation, the detour is completely outside the scope and course of employment. 

Intentional torts

If a servant had intentionally done an act, he would be held solely liable. The master had never authorized such an act, so his vicarious liability would not sustain. For example- if a driver on duty intentionally hits a person out of revenge, the master would not be held liable.

Difference between joint and several liabilities

Joint tortfeasors are defined as “two or more individuals jointly or severally accountable in tort for the same bodily or property harm, whether or not judgment has been collected against all or some of them.” In the United States, joint tortfeasors are held jointly or severally accountable. As a result, the plaintiff may sue all of them or any one or more of them. If he secures a judgment against someone, he may sue another and acquire a judgment as long as the judgment is not fulfilled.

In joint liability, both parties are equally liable to pay. That means if a party pays the whole of the compensation, then the other party gets completely discharged from the liability.  While in several liability, both the tortfeasors have to pay in proportion to the damage caused by them. 

But both these concepts have been combined under ‘joint and several liability’. Herein, both the tortfeasors have to promise to pay the amount jointly and severely. The victim can make either both or one of the tortfeasors a party to the suit. 

In Kaeo v. Davis (1986), a Hawain case, the need to abrogate joint and several liability came up. Herein, as the liability of one part was ninety-nine percent and that of the other was just one percent, he was not made liable. Herein, a man named Davis was driving in an intoxicated condition. An accident was caused by him at a sharp curve on the road. The city was made liable due to its negligence in making and marking the curve properly. But the negligence of the driver was found to be extremely high, as he was drinking and driving. The Hon’ble Court pointed out that these are the cases where the problem arises. The difference in the liabilities makes it difficult for the courts to determine joint and several liabilities. The demand for reforms in joint and several liability has led to the release of the report of the Tort Policy Working Group on causation and other such reports. 

Is the liability the same for independent contractors 

A master is not held liable for the work of the independent contractor as he does not exercise his ‘control’ over the contractor. The master only assigns the work to the independent contractor, but the manner in which the work has to be performed is at the discretion of the independent contractor. There are certain exceptions to this norm, wherein an independent contractor is held similarly liable as a servant. The first is regarding unauthorized sub-delegation and the second is pertaining to an inherently hazardous activity.  So if a person ‘A’ is employed to do a certain work and he delegates it to some other person, without any authority, it would be unauthorized delegation. The master will also be held liable if he engages the contractor in an inherently dangerous activity like making explosive material. Herein, the first act acts an exception because the servant is acting beyond the scope of his employment. While when the master assigns an inherently dangerous activity to be conducted, he is himself doing an unlawful act and thus should be made liable. Even the Second Restatement of Torts § 409 of 1964 absolves an employer of all liabilities arising from the work of an independent contractor unless they fall into one of the two categories mentioned above. In Wilson v. Good Humor Corp., 1984, the Hon’ble Court held that since herein the ‘control’ is with the contractor himself, the employer cannot be made liable.

Vicarious liability for employees v. vicarious liability for independent contractors 

The vicarious liability of a master exists for his servants when they are acting in the course of employment. If the work is outside the course of employment, then the master is not liable. For example: if a servant is employed to drive the master, then if he does anything else unconnected with this work, the master has no liability. A servant is said to be acting in the course of employment if:

• The master has authorized the wrongful act, or
• The work is authorized, but the manner in which the servant performs it is unauthorized or wrongful. 

Therefore, in totality, it is the rule of thumb that the master will be accountable not merely for what he has authorized his servant to do but also for the manner in which the act has been authorized to be conducted. It is currently the law that anytime a servant performs anything that his employer has forbidden him to do, the conduct falls outside the scope of work. Prohibition is classified into two types: those that limit the extent or sphere of work and those that just influence or restrict the way of doing the act for which the servant is engaged. If a servant breaks a ban in the first category, his action is considered to be beyond the scope of his work, and the master is not held vicariously accountable. A violation of the first type of prohibition would make the act outside the course of employment, and there would be no vicarious liability for the master. But the second type of violation by the servant will still be in the course of work, and the liability of the master will still exist.

There are a few more situations in which the master would be liable- First, if the improper act is undertaken for the master’s advantage while the master is conducting his business, the master is culpable. Second, the master is accountable if the servant commits improper conduct while operating within the apparent extent of his authority, even if the act was performed for his own profit or the benefit of someone other than the master. The master is also not liable for the acts of the servant, which are only done because an opportunity is afforded to him due to his employment. For example- if a window cleaner steals an article from the room where he is doing the window cleaning work, his employer is not liable. 

The vicarious liability of an independent contractor is contrary to that of a servant. In general, an employer is not accountable for the torts committed by an independent contractor. An illustration can be if a contractor is employed to build drainage. And later on, that drainage blocked the drainage of the neighbor’s house, then the man who assigned the construction of the damage was not liable, but the contractor himself would be liable. There are two exceptions: where the employer retains control over the contractor and personally intervenes and becomes a party to the conduct that causes the damage, and if the item contracted to be done is improper in and of itself. In such instances, the employer is accountable to third parties who suffer damage as a result of the contractor’s or his subordinates’ wrongdoing. 

Employees	Independent contractors
Master is generally vicariously liable.	Master is generally not vicariously liable.
Vicarious liability ends when the servant acts outside the scope of employment.	Vicarious liability starts when it falls within certain exceptions.
Example- Mr. A is vicariously liable if his driver, on his way to pick him up, causes an accident.	Example- If an independent contractor is assigned to build a house, then if an object falls upon a passerby while the construction is going on, then only the independent contractor will be liable.

Judicial pronouncements 

Stapleton v. Independent Brew Co., 1917

This case was regarding the accident caused to the plaintiff due to the defendant’s automobile, which was lent to the Detroit Axle Company and was being used by an employee of this particular company. The Supreme Court of Michigan held the defendant vicariously liable, saying that a lender should be sure of the competency of the person to whom he lends. 

Kuhn v. P. J. Carlin Constr. Co., Inc.,1935

Herein, a person died due to the sinking of a steamship. The plaintiff, who was the administratrix of the deceased in the case, sued the defendant company Carlin Co. He alleged that the defendant company had the knowledge that the boiler of the steamship was in a dilapidated condition and was unfit for use. The Court held that there was no notice of such defect. If the master had noticed the defect and then also turned a blind eye to the problem, he is vicariously liable; otherwise, he can escape the liability. In this case, the master had no notice of the defect, so he was not held liable when the case went from the New York court to appeal. 

Macon & A. R. Co. v. Mayes, 1873

This case again affirmed the vicarious liability of an employer. Herein, the plaintiff lost one of his legs due to the negligent conduct of the defendant in driving one of his steam cars. The plaintiff herein was employed to lay down tracks but on the unfateful day, he was acting as the fireman as the person who was employed as the fireman was sick. While doing such duty, he was injured by one of the steam cars. The employer was held liable to the plaintiff in this case as the man who was driving the engine was his employee. 

Conclusion

The concept of vicarious liability helps provide compensation to the victims. If the servant is made liable, then he might not be able to pay the victims, and the whole social welfare concept might collapse. It makes a person liable on ‘no fault basis’ and helps in providing adequate compensation to the aggrieved person. This law has helped numerous victims and has even made the state liable, at times, for the wrongs of its servants. It is an important part of tortious liability, which has evolved over time with an expansion in the definition of an independent contractor, joint, and several tortfeasors. 

Frequently asked questions (FAQs) 

What is vicarious liability?

Vicarious responsibility is an obligation imposed on one person (B) for the torts of another (A) in cases where B has not done any legal wrong. 

What is the difference between scope and course of employment?

The course of employment is much broader than the scope of employment. The scope of employment is generally the work that is connected with the employer directly. 

How is the liability of an independent contractor different from a servant?

A master is not vicariously liable for the actions of an independent contractor except in certain circumstances, while the same is not true in the case of a servant. 

References 

• https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1889&context=lalrev
• https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=5169&context=ilj
• https://albertalawreview.com/index.php/ALR/article/view/1254
• https://www.jstor.org/stable/41819932?searchText=vicarious+liability+in+torts&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dvicarious%2Bliability%2Bin%2Btorts&ab_segments=0%2FSYC-6744_basic_search%2Fcontrol&refreqid=fastly-default%3A6a156704393bc56e4a965f85b61a0175#metadata_info_tab_contents
• https://advance-lexis-com.eu1.proxy.openathens.net/document/?pdmfid=1523890&crid=5f3faa03-73fe-4272-b075-03f1dd14774c&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A60C4-9901-JJK6-S1KK-00000-00&pdcontentcomponentid=166019&pdteaserkey=sr19&pdicsfeatureid=1517130&pditab=allpods&ecomp=zzcJk&earg=sr19&prid=7201483c-7721-4e73-81ff-4841c237e43e
• Winfield and Jolowicz on torts, Edwin Peel and James Goudkamp, Sweet and Maxwell, 2010
• https://advance-lexis-com.eu1.proxy.openathens.net/document/?pdmfid=1523890&crid=5f406a75-843c-4d4f-a451-382b9396de50&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A590S-X2F0-00WJ-30FW-00000-00&pdcontentcomponentid=255158&pdteaserkey=sr28&pdicsfeatureid=1517130&pditab=allpods&ecomp=zzcJk&earg=sr28&prid=1f3c717f-f951-4b21-b366-5b3459adbe98
• https://heinonline.org/HOL/Page?public=true&handle=hein.journals/louilr70&div=19&start_page=501&collection=usjournals&set_as_cursor=2&men_tab=srchresults
• https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=4507&context=vlr 
• https://heinonline.org/HOL/Page?handle=hein.journals/prevlr15&id=29&collection=usjournals&index= 

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This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article deals with the tort of negligence on the roads, the meaning of negligence, its elements, the legal obligations of drivers, different types of negligence in road accidents, and examples of negligence-related accidents with defenses.

it has been published by Rachit Garg.

Introduction

Negligence is the act of being careless in a manner that harms another person. In any auto, truck, bus, or other kind of on-road collision, it is an act or failure to act that causes an accident. Running a stop sign, failing to yield, driving too fast, driving while intoxicated, driving inappropriately for the weather conditions, or allowing someone to drive who is not licensed or otherwise qualified to do so are all instances of failing to follow the rules of the road and constitute negligence.

According to data from the National Highway Traffic Safety Administration (NHTSA), human error is the main factor in most car accidents. One of the most frequent causes of car accidents currently is negligent driving, which refers to instances where a driver drives carelessly or without thought. It’s a serious issue because drivers are more distracted than ever. Given how common, dangerous, and deadly negligent driving can be on the roads, this article deals in detail with it.

What does negligence mean in road accidents

The legal definition of negligence is “failure to exercise the degree of care that would be expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation.”

Negligence in road accidents is defined as the failure to exercise reasonable care, which results in the unintentional harm or injury of another person. For instance, a large number of auto accidents occur because of the driver’s carelessness or inattentiveness while operating the vehicle.

A driver must exercise reasonable care in order to avoid injuring other drivers, passengers, or pedestrians. If a driver fails to exercise reasonable care and someone is injured as a result, the driver may be held liable for the victim’s injuries and other losses. Victims of careless driving may be entitled to compensation for their injuries, pain and suffering, lost wages, and property damage.

Elements of a negligence claim

The following four elements must be proven in order to establish negligence.

Duty of care

First, the plaintiff must establish that the defendant owes them a legal duty of care. A duty is an obligation under the law to take reasonable care or act prudently. Every person who drives a car has a duty to drive carefully. Every driver has a responsibility to operate their vehicle in a manner that keeps everyone on the road, including other motorists, passengers, cyclists, and pedestrians, safe. They must take reasonable precautions and abstain from harmful behavior. This step is fairly simple because drivers must use due care and obey traffic laws. All drivers have a responsibility under the law to drive safely and in accordance with the rules of the road. 

Breach of duty

A breach of duty occurs when reasonable care is not taken. In other words, it involves acting in a way that a prudent person would not act or refrain from acting prudently. The actions of drivers are compared with what a ‘reasonable person’ would do in the same circumstance. It’s essential to prove in personal injury cases that the at-fault driver broke traffic laws or failed to act in a reasonable manner. Having to prove either one or both of these points illustrates that the driver was unable to exercise a reasonable standard of care. When drivers don’t exercise a reasonable standard of care, it constitutes a breach of duty. The plaintiff must show that the defendant breached their duty to drive safely. A case for negligence against the at-fault driver is strengthened by proving a breach of duty. Common examples of negligent driving include failing to stop at a red light, driving too fast or too slowly, and failing to use the vehicle’s turn signals.

Causation

Negligence cannot exist unless there is a clear causal connection between the breach of duty and the damage that results. If the failure to perform one’s duty resulted in an accident, individuals would be held legally responsible. If another factor causes the accident or harm, there can be no legal liability. To succeed in a claim against the other driver, it must be shown that their negligence caused the injuries or property damage. There are two methods for proving that the accident was caused by the driver’s carelessness. They are:

Cause-in-Fact

The accident was caused directly by the driver’s negligence. A cause-in-fact is when a driver strikes a car that has the right of way after running a red light. 

Proximate cause

The accident was indirectly brought on by the driver’s negligence. Suppose that a drunk driver loses control of their car, drifts off the road, and collides with a power pole. When a pole falls and collides with another moving vehicle on the highway, there is property damage and injuries. This is an example of a proximate cause.

Damages

The costs and losses resulting from auto accidents are known as damages. Actual losses or damages must be the result of the accident in order to have a negligence case. The victim must actually be hurt in some way. Liability cannot be established by the mere possibility that ‘someone could have been hurt‘. There are two categories of damages:

Economic damages 

Economic damages are the actual costs associated with an accident. Examples of economic damage include medical costs, repair bills, replacement costs, job retraining expenses, relocation costs, or accessibility upgrades for permanent injuries.

Non-economic damages

The impact of the accident on a person’s life in non-economic ways is included in non-economic damages. Examples of non-economic damages include suffering from chronic phobias, Post-Traumatic Stress Disorder (PTSD), depression, nightmares, extreme anxiety, and pain. It is essential to recognize and evaluate non-economic damages while figuring out how much compensation to claim. Nearly 40% of car accident victims in the US experience PTSD as a result of their mishaps. A person’s quality of life may be negatively impacted by the long-term effects of PTSD, which include emotional detachment, insomnia, flashbacks, and anxiety.

Legal duties of the driver

To avoid injuring other drivers on the road, drivers must follow the law and take reasonable precautions. It is everyone’s responsibility to drive safely for the sake of other motorists, pedestrians, and other road users. If the plaintiff proves the other elements of negligence, the court may find that drivers who disobey any of the following duties are negligent.

Duty to drive at a reasonable speed

While driving, drivers have a duty to maintain a sensible, reasonable speed while taking into account the traffic, the environment, visibility, and other factors. Even going the speed limit could be deemed negligent if, for example, there is poor visibility, the weather is bad, or the situation necessitates extra caution (such as while passing a school where children are likely to be crossing). When a driver travels at a speed that is inappropriate for the circumstances, such as reduced visibility, negligence may be implicated. It doesn’t matter if the person was driving within the speed limit, if the weather is poor or if there are other reasons to slow down, such as when driving close to a school.

Duty to be vigilant and keep a proper lookout

It is the responsibility of drivers to be alert and to keep a close eye out for other cars, pedestrians, and potential road hazards. Drivers are expected to see the same things that a normal, prudent person would. Failure to do so may be considered negligent.

Duty to maintain equipment

Every driver has a responsibility to keep their vehicle in a safe operating condition because it will be on the road alongside other vehicles. This necessitates routine checks to make sure that all brakes and lights are operating properly.

Duty to maintain control of the vehicle

It is the responsibility of every driver to keep their car under control by staying alert, paying attention, and having quick stopping power. Negligence may be assumed if a car loses control for any reason, such as flipping over or drifting off the road.

Duties of driver imposed by state law

The motor vehicle laws of each state determine the standards of conduct for drivers. When a traffic law is broken, there may be a presumption of negligence, which requires the defendant to show they weren’t negligent. The following are some examples of behaviors that might give rise to a presumption of negligence:

• Driving under the influence of alcohol or drugs.
• Violating right-of-way rules, such as those pertaining to a pedestrian’s right of way, and 
• Driving on the wrong side of the road.

Types of negligence in road accidents

Drivers may commit serious offenses that put both themselves and other people in danger, or they may make small, seemingly harmless mistakes. Typical instances of negligence on the roads include:

Speeding

Approximately one-fourth of all accidents in the US are caused by speeding or driving too fast for the conditions of the road. Speeding is dangerous as it increases the likelihood that the driver will lose control of the vehicle, gives them less time to react by applying the brakes, necessitates a longer stopping distance, increases crash severity, and reduces the effectiveness of the safety features of the vehicle, such as the steel frame, airbags, and seat belts.

Alcohol impairment

In the US, drunk driving causes the deaths of about 32 people a day. The ability to steer and brake effectively, track moving objects, control one’s own speed, and pay attention to the task of driving are just a few of the abilities that are impaired by alcohol.

Traffic violations

Many drivers speed, but it is important to understand that speed limits are in place for a reason. Due to these speed limits, drivers are obligated to slow down when it is necessary, such as when turning onto another road or driveway or when a pedestrian is crossing the street. Making illegal turns, ignoring stop signs or red lights, or driving the wrong way down a one-way street are all examples of dangerous traffic violations, in addition to speeding.

Failure to yield the right-of-way

In situations like stop signs, red lights, U-turns, at crosswalks or railroad crossings, or when pulling out of a parking lot or private driveway, all drivers are required to yield the right-of-way to other vehicles.

Tailgating 

When a vehicle is being followed too closely, there is a greater chance that an accident will occur if the leading vehicle suddenly slows down or stops, leaving the following vehicle with insufficient time or space to come to a complete stop.

Drowsy driving

Due to overwork, lack of sleep, or other risky behaviors, fatigue is a problem that many drivers may experience. Many people are unaware that staying awake for 18 to 24 hours can have similar effects on the mind and body as to drinking alcohol. Drowsy drivers will have slower reaction times, balance issues, and coordination issues, making it more likely that they won’t be able to avoid collisions.

Failing to take into account road construction, weather, and traffic

Traveling at the posted speed limit is sometimes too fast for the conditions and can endanger others on the road. Snow, ice, rain, or fog, for example, can make it difficult to see or stop. Traffic congestion may necessitate unexpected stops. Road construction endangers both workers and other drivers. Drivers must maintain sufficient space between vehicles and slow down or stop when necessary if they are in any of these circumstances; failing to do so can result in collisions and the injury of innocent victims.

Distracted driving

Another significant factor in U.S. road accidents is distracted driving. There are three different types of distractions: manual distractions, which cause the driver to take his or her hands off the wheel, visual distractions, which divert the driver’s attention from the road, and cognitive distractions, which cause the driver to lose focus on the task of safe driving.

Aggressive driving

If a driver is late or feels that someone else is not moving quickly enough, they may experience ‘road rage’ or act aggressively toward other drivers or pedestrians. These drivers may engage in risky behaviors like tailgating, cutting off other cars, or disobeying the right-of-way of other vehicles, bicycles, or pedestrians.

Examples of road accidents caused by negligence 

Since human error causes the vast majority of motor vehicle collisions, the negligence of the driver can be a contributing factor in almost any type of accident. Road accidents caused by negligence commonly occur in the following ways:

• Broadside: When the front of one car strikes the side of another, the collision is referred to as a broadside accident, also known as a T-bone or side-angle collision. A driver’s failure to yield the right-of-way frequently results in this kind of accident in the intersection. 
• Rear-end: Accidents that involve a rear-end collision happen when the front and back of two vehicles collide. This kind of collision is frequently caused by tailgating, but it can also occur when a driver enters a lane of traffic without first judging the gap in traffic (failure to yield).
• Head-on: When the front of one car strikes the front of another, it is called a head-on collision. Getting lost or driving the wrong way while intoxicated frequently result in head-on collisions. This kind of collision can also occur as part of a multi-vehicle collision in which one of the vehicles is pushed into oncoming traffic due to the force of the collision. 
• Rollover: Rollover accidents can be tripped, which means that the tire of the car ‘tripped’ on something like a guardrail or median, or untripped, which often happens as a result of emergency driving maneuvers like swerving to avoid a collision.
• Sideswipe: When the side of one vehicle collides with the side of another vehicle, it results in a sideswipe accident. This kind of accident is frequently brought on by a kind of failure to yield where a driver switches lanes without first making sure the lane they are switching to is clear.

Defenses for the claims of negligence on roads

The defendant will attempt to disprove one of the elements of the plaintiff’s cause of action in order to successfully defend against a negligence claim. In other words, the defendant presents evidence to show that they had no duty to the plaintiff, that they took reasonable precautions, that the plaintiff’s damages were not caused by them, and so on. A defendant may also rely on one of the few doctrines that may limit or eliminate liability based on alleged negligence. Contributory negligence, comparative fault, and the assumption of risk are three of the most common doctrines. For instance, if the other party was negligent as well, one person might not be held entirely accountable. This, as well as other defenses to negligence claims, are discussed below.

Contributory negligence

One of the most often used defenses to negligence claims is the defendant’s ability to prove the plaintiff’s contributory negligence. Contributing negligence is when a plaintiff’s actions fall short of a standard necessary for the plaintiff’s protection, and these actions harm the plaintiff in addition to the defendant’s negligence. In plain English, this means that if the plaintiff had not also been negligent, injuries would have most likely been avoided.

For instance, a welding torch malfunctions and causes serious burns to a factory worker’s face. He could have avoided the injury, but he forgot to flip down his mask before using the torch. The cause-in-fact and proximate cause of the damages is, technically speaking, the plaintiff’s negligence of his safety (failure to use appropriate safety equipment).

‘Contributory negligence’ is a very defendant-friendly rule that is only present in a few states (Maryland, Virginia, North Carolina, and Alabama), as well as the District of Columbia. According to this rule, if a plaintiff in a car accident shares any responsibility for the accident, they are not eligible to receive any compensation at all. Therefore, even if the plaintiff was only 5% at fault and the defendant was 95% at fault, the plaintiff would not receive anything. In these states, defendants and insurers attempt to raise this defense whenever possible because proving contributory negligence is a complete shield against liability. The doctrine of contributory negligence effectively bars an accident victim from receiving any compensation if the defendant can prove that the plaintiff was careless and contributed to the accident in some way. 

The contributory negligence doctrine has harsh effects because it disqualifies accident victims from receiving compensation, even if their level of fault is minimal. Because of this, only a few states still adhere to this rule. Some states, including the District of Columbia and North Carolina, apply the doctrine of ‘pure contributory negligence.’ According to this doctrine, a victim who is only 1% at fault may not be awarded damages in a lawsuit. In contrast, Indiana only uses this doctrine in malpractice cases.

The contributory negligence defense is not applicable in a situation where the defendant had a ‘last clear chance’ to avoid harm by using ordinary care. For instance, despite the ‘don’t walk’ sign being clearly visible, a pedestrian crosses the street. The pedestrian is struck and hurt by a driver who has the right-of-way but is texting while driving. The driver can still be held accountable because, with reasonable care, she could have prevented hitting the pedestrian. The last clear chance exception and contributory defenses to negligence claims have been replaced by comparative negligence in many states.

Comparative negligence

The doctrine of contributory negligence has been largely replaced by the doctrine of comparative negligence because it sometimes produces harsh outcomes. The comparative negligence doctrine (also called ‘non-absolute contributory negligence’) states that a plaintiff’s damages are reduced by the percentage of his or her fault that led to the injuries sustained. The majority of states have amended this rule to prohibit recovery for plaintiffs who are more or equally at fault than the defendant, depending on the state. There are three types of comparative negligence which are discussed below.

Pure comparative negligence

According to the concept of comparative negligence, a victim who contributed to an accident should also be held partially liable for the harm and expenses it caused. Pure comparative negligence models, which assign percentages of fault for the accident to each party and then calculate damages in accordance with that percentage of fault, are used in some states, such as California, New York, and Florida.

For instance, if both drivers contributed equally to a collision, each would be entitled to compensation from the other for half of their losses. Even if the plaintiff was more at fault than the defendant, they are still entitled to compensation proportionate to the defendant’s level of negligence.

To prove comparative negligence, the plaintiff must essentially establish all of the elements of a negligence claim against them. The accident was the result of their failure to exercise the required level of care, which they were obligated to do. Just as a defendant must conduct a thorough investigation to show comparative fault by the plaintiff, a plaintiff must do the same to prove the defendant’s fault in an accident.

Modified comparative negligence

In some states, a modified version of comparative negligence is used, which may be more accommodating to some defendants. Modified comparative negligence is important because it establishes a threshold for how much fault is acceptable. Damages cannot be awarded to the plaintiff if their percentage of the fault is found to be equal to or greater than that percentage. Usually, this proportion is between 50% and 51%. A defendant should not be required to make a restitution payment to someone who contributed to the accident to an equal or greater degree than the defendant appears to have done. A modified comparative negligence system operates exactly like a pure comparative negligence system if the plaintiff’s percentage of fault is determined to be less than the cutoff.

Slight-Gross 

The plaintiff will only be awarded damages if the defendant’s negligence is deemed ‘gross’ and the plaintiff’s negligence is deemed ‘slight.’ The rule governing slight/gross negligence is only recognized in South Dakota. This rule substitutes the percentages of fault assigned in an accident with ‘slight’ and ‘gross’ contributions to the accident. If the plaintiff’s involvement in the accident was slight while the defendant’s involvement was gross, the amount of the award would be higher. In this context, the word ‘gross’ refers to a willful, reckless disregard for the well-being of the injured party. If a plaintiff’s involvement in an accident was greater than ‘slight,’ the amount of damages awarded to them would be lower.

Assumption of risk

A plaintiff may not be able to receive compensation for injuries if they accept the risk associated with an activity that is obviously risky but still chooses to participate in it. The plaintiff must have actual, subjective knowledge of the risk associated with the activity in order for this doctrine to be applicable. Further, the plaintiff must voluntarily accept the risk associated with the activity. Any additional, unidentified risks would not be covered by the assumption of risk defense.

For example, consider an amusement park ride that flips passengers completely upside-down. A passenger who witnessed the ride and was aware of what would occur accepted the risks involved. A plaintiff, on the other hand, does not accept the risk of something unanticipated happening in connection with the ride, such as when a loose bolt causes the ride to violently throw the plaintiff.

Legal responsibilities of traffic agencies

The role of government is to protect its citizens and provide for their needs. One of the services that government representatives and staff are expected to provide is transportation. The primary goal of transportation should be the efficient and safe movement of people and goods within acceptable financial constraints. Although it offers transportation services, the government does not guarantee a highway user’s safety in every situation. Any government has a fixed amount of resources, so expecting that the majority of funding will go toward keeping the roads completely sound and safe is not realistic. However, the courts have frequently ruled that the government must keep its streets and roads reasonably safe. Failure to do so may result in liability if a user is injured. Traffic agencies have been found liable for damages for a wide range of actions taken or left undone. Some of the cases are as follows:-

The California court held in Churchman v. Sonoma County (1943) that the absence of signs warning of soft shoulders exempted a driver from the charge of contributory negligence in a situation where the claimant was hurt as a result of the overturning of the car.

In Hogg v. Department of Highways of the State (1955), the plaintiff was hurt when his motorcycle crashed into a large hole in a bridge over a highway and overturned. Heavy traffic had caused pavement pieces to become dislodged, resulting in a 12 by 14-inch hole that completely penetrated the bridge’s wood decking. Since the evidence suggested that the State’s road foreman had ample (constructive) notice of the damaged condition of the pavement on the bridge, the court’s decision favored the plaintiff. Further, the plaintiff was found not guilty of contributing negligence for failing to avoid the hole, and the State of Louisiana was found liable because it was aware of the dangerous condition of the bridge floor but did nothing to fix it.

In  Lynes v. St. Joseph Road Department (1970), the plaintiff in St. Joseph’s County, Michigan, sued the St. Joseph Road Commission, claiming that the department had failed to maintain a necessary sign. The plaintiff’s car struck another vehicle at an intersection. The plaintiff claimed he was unable to see the stop sign in time to avoid the collision because it was dark when the accident happened, and it was not well-reflective. The department was found negligent by the court for failing to maintain the sign properly. The court further observed that the County is responsible for keeping the highway in a reasonable condition so that it is reasonably safe and convenient for the general public.

In Bourgeois v. the State of Louisiana (1971), the plaintiff sued the defendant for negligence on the grounds that the State had neglected to properly maintain a traffic signal at an intersection. The plaintiff approached an intersection with a green light and tried to cross the street when she was struck by a car on the opposite side of the intersection. According to witnesses, the traffic signal was permanently showing red on the other street and green on one street. When the other car attempted to cross the intersection against a red light, the plaintiff’s car was struck by the other car. The failure of the State to properly maintain the signal was found to be negligence by the court, and this was determined to be the accident’s proximate cause. Negligence was established because the State had actual notice three days prior to the accident but did not take corrective action.

Conclusion

According to data from the National Highway Traffic Safety Administration (NHTSA), human error is the main factor in most car accidents. One of the most frequent causes of car accidents today is negligent driving, which refers to instances where a driver drives carelessly or without thought. It’s a serious issue because distracted driving is on the rise. Accidents involving motor vehicles are frequently fatal, dangerous, and almost always avoidable. In light of the nearly 7 million car accidents that occurred in the US in a single year, driving can seem risky. The majority of collisions are caused by simple auto negligence, although this may give the impression that driving is always dangerous. A person can act negligently in a car accident scenario by either doing something they shouldn’t have (like speeding or running a red light) or by not acting responsibly (like failing to yield, stopping for a pedestrian, or driving at night without turning on their headlights).

FAQs

What is driver negligence?

When a driver disregards their responsibility to act with reasonable care toward other motorists on the road, it is called driver negligence. Driving recklessly has the potential to hurt other people. Driving negligently can involve a variety of behaviors, such as speeding and drunk driving.

What does reckless driving mean? 

Reckless driving includes risky and unlawful driving while ignoring the safety of other motorists and pedestrians. Those who drive recklessly are aware of the dangers involved in their behavior behind the wheel, yet they continue to do so.

Does reckless driving constitute a crime? 

It is usually regarded as criminal activity due to the driver’s intention and willfulness.

Is driving recklessly the same as negligent driving? 

No. Traffic infractions are frequently used to describe these accidents because negligent drivers, unlike reckless ones, are unaware of the risks involved in their actions.

References

• https://www.nolo.com/legal-encyclopedia/car-accidents-caused-by-negligence-29537.html
• https://www.hg.org/legal-articles/duties-of-all-drivers-20047
• https://www.torhoermanlaw.com/auto-negligence-when-is-someone-considered-a-negligent-driver/
• https://www.macelree.com/negligence-when-does-an-accident-create-legal-liability/
• https://nicoletlaw.com/blog/4-elements-of-a-negligent-driver-claim/ 
• https://www.findlaw.com/injury/accident-injury-law/defenses-to-negligence-claims.html

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This article is written by Diksha Paliwal, a student of LLM (Constitutional Law). The article discusses the noteworthy concepts of assault in the third degree. The latter part deals with the concept described above as per various state laws in the USA. It also briefly discusses the difference between assault and battery. 

It has been published by Rachit Garg.

Introduction 

Assault is among the most common types of criminal offences. In layman’s language, it can be understood as an act where one person intentionally or recklessly injures another person. In common parlance, assault is a violent offense in which a person is charged or accused of striking, causing wrongful physical harm to, or contacting another person.

US law has several categories of assault for which a person may be prosecuted; however, the present article will focus on the topic of “third-degree assault.” 

Meaning of assault

Etymologically, the term “assault” means unlawful bodily harm inflicted upon a person by another person. To put it simply, assault can be connoted as an intentional act that puts the other person in a reasonable apprehension of harmful or offensive conduct. To constitute an assault causing physical injury, the intention to cause harmful or offensive contact with the victim is not a necessity. Also, it is an essential element of assault that the victim should have been put immediate apprehension of such harmful or offensive contact. 

The term “intention” in assault signifies that the act done by the tortfeasor (a person who commits a tort) is not accidental, and the motive here is immaterial. For instance, it will not matter if the aim of the tortfeasor was just to scare the victim or if his act was just meant to be a joke. It is immaterial whether the intention of the tortfeasor concerning physical contact is harmful or offensive, only the intention for actual contact is enough. 

The term “reasonable apprehension” concerning assault connotes that the victim has a reasonable belief that the act of another person will cause or lead to imminent harm or offensive contact. In cases of assault, the victim is not required to prove that he was in any kind of fear; only the fact that they were aware that such contact might occur is sufficient. In case the victim and tortfeasor do not know each other, then the law requires that in such a case a victim would have believed what a normal and sane person would have believed in such a circumstance. If they know each other, then that special knowledge will help interpret whether the victim’s apprehension is reasonable. 

The term “imminent” in relation to assault means that the harmful or offensive contact must be certain or likely to occur very soon. The term “harmful or offensive” connotes an objective standard of touching that is likely to cause harm, is capable of causing harm, or is sufficient to offend a person by violating the social standards of acceptable touching. Also, an act constitutes an assault if it is not offensive, still, the perpetrator has done an act that is unusually offensive to the victim, despite the victim being well acquainted with the sensitivity towards that particular act.

Degrees of assault under US laws

Assault can be of various types or degrees under the different state laws of the US. The most common classifications are; first degree assault, second-degree assault, third-degree assault, class C assault, and class A assault. 

Class C assault 

Generally, class C assault is considered the lowest class of assault or misdemeanour. Under this category, a person intentionally or knowingly causes physical contact with another person, which is offensive or proactive.

Class A assault

Under this type of assault, a person intentionally, knowingly, or recklessly causes injury to another person, including the person’s spouse. The penalty for such an assault can include up to a year in prison and a fine.

First-degree assault

A person receives a high amount of punishment for a first-degree assault. It can be described as intentionally causing or inflicting fear of serious harm or injury by using a deadly weapon. 

Second-degree assault

Under this category, a person knowingly inflicts serious bodily injury or the fear of injury through a deadly weapon.

Third-degree assault

Under this category, a person uses a deadly weapon to recklessly inflict fear of serious bodily injury, or otherwise fear of causing any injury, on another person.

This article only focuses on the category of assault that falls under the category of least serious assault, i.e., third degree assault.

Fourth-degree assault

A person is charged with assault under the fourth degree when he or she intentionally, knowingly, or recklessly causes physical injury to another person, or a person causes physical injury to another with a dangerous weapon under criminal negligence, or if a person causes imminent fear of physical injury to another. Usually, fourth-degree assault in most state laws falls under Class A misdemeanor. 

A general overview of third-degree assault under US law

Under US law, third-degree assault is considered the least serious form of assault in most jurisdictions. This category of assault requires the least amount of intentional conduct. The defendant will receive a punishment that is less severe under the third degree in comparison to other assaults.

In comparison to third-degree assault, first- and second-degree assault involve a more deliberate act, resulting in harsher penalties. The reason behind this is that, as per the general principle of criminal law, intentional acts are to be punished more severely than negligent or reckless acts. However, it is important to understand that the exact definition of different categories of assault varies according to different state laws, and some distinctions may be added or reduced in different categories of assault.

In some of states in the US, third-degree assault is considered a wobbler offence. The term “wobbler offence” denotes those crimes that can be charged as a felony or misdemeanour, as per the facts and circumstances of the case. 

In most cases, it is the prosecutor who determines whether the defendant will be charged with a felony or a misdemeanour. There are certain instances where the criminal consequences of third-degree assault are much more similar to those of a misdemeanour, but the assault is treated as a felony. 

Some factors that may result in a third-degree assault being charged as a felony are: repeat assault offences, which may lead to serious consequences, for instance, for repeat offenders; cases where the victim suffers a greater degree of bodily injury or harm; or if the weapon used is a very dangerous one.  Also, in certain cases, if the assault is on a police officer or a government official, a minor, or a domestic partner, then such an assault is treated as a felony.

However, in some cases, the criminal charges are often reduced to fourth-degree assault after looking into the facts and circumstances of the case. Though not all jurisdictions have laws concerning wobbler offences, a defendant may file a petition before the court to reduce the charges for which he has been prosecuted from a wobbler felony to a misdemeanour.

Defences available for an assault charge

If a person is charged with third-degree assault, it is essential that the person who has been assaulted has suffered physical harm.  However, the physical injury need not be severe in nature to convict someone of third-degree assault charges. Pleading before the court that the victim has not suffered any physical injury, is a good defence available to the defendant in order to get an acquittal on assault charges. 

In some states of the US, like New York, an individual is permitted to use reasonable force to protect himself or any other person from imminent physical danger. Provided the court must be satisfied that you were in a reasonable apprehension that you might have gotten hurt in case the right to self-defense is not exercised by you. 

A large number of assault cases are registered, where the incident arises in parties or bars, or any other public place. In such cases, the victim mistakenly identifies the wrong person, and it is often found that the victim did not recognize the person. In such cases, where even the victim is not sure about your identity, it turns out to be a good defence point.

Consequences of third-degree assault conviction

When talking about criminal consequences, the first consequence that a person faces after conviction on third-degree assault charges is imprisonment, which may be up to a period of 1 year. However, this period of imprisonment may extend up to 18 months in cases where the victim suffers severe injuries. 

In some cases where the accused is charged with assault in the third degree because it is a misdemeanour, the judge, if he deems fit, may just order the accused to spend a certain amount of time on probation rather than giving him the penalty of imprisonment. Some rules that a person sent on probation must follow are as follows:

1. He must not commit a crime, 
2. He must not leave the state he resides without getting prior permission from the court, 
3. He must not get in touch with other criminals, abide by the laws of the state, 
4. He must perform community service, refrain from consuming alcohol, etc.

Apart from the term of imprisonment as prescribed by the statute, the person convicted of assault is also required to pay a certain amount of fine as ordered by the court, which may extend up to $1000. In addition, the accused may be asked to pay restitution to the victim in excess of $15,000, or in some severe cases, the amount may be increased if the judge deems it appropriate. It all depends on the facts and circumstances of the case. In the event of failure to pay the fine or the restitution charges as ordered by the court, the person may be charged with a misdemeanour and can also be sent to prison. The court may also order to deduct the salary or wages, in the event of non-compliance with its order. However, the court may reduce the amount of the fine or restitution, after considering a person’s financial condition. 

The court may pass an order of protection to protect the victim from the accused. The prosecutor may plead for the grant of such protection to keep the victim safe. In most cases of third-degree assault charges in domestic violence incidents, the court issues an order of protection to keep the victim safe from future mishaps.

Assault in the third degree: a state-wise description

Third-degree assault in Nebraska

In Nebraska, assault in the third degree is defined under Sections 28-310 of the Nebraska Revised Statutes as an act wherein one person intentionally, knowingly, or recklessly causes bodily harm to another or menacingly threatens another. As per the facts and circumstances of the case, this can be categorized as a Class I or II misdemeanour. In third-degree assault, no proof of serious bodily injury is required; proving bodily harm is sufficient, which can be proved from the evidence that the victim was intentionally struck by the defendant.

In Nebraska, generally, third-degree assault is treated as a Class I misdemeanor. The punishment for third degree ranges from zero to one year in jail or a fine up to $1,000, or both at the maximum. In Nebraska, there is no minimum sentence, and the punishment can fall between these two extremes at the judge’s discretion. In the case of a Class II misdemeanour, the penalty can range from six months, a one thousand dollar fine, or both. Also, in some instances, the minimum punishment is sometimes no punishment at all or just a meagre fine. Generally, the penalty is carried out in the county jail for third-degree assault, except for some selected instances in which the sentence would be carried out under the jurisdiction of correctional services. For example, if a one-year sentence for a Class I misdemeanour is imposed and the sentence is to be served concurrently with a felony conviction.

Colorado

In Colorado, third-degree assault is discussed under Section 18-3-204 of the Colorado Revised Statute and is described as intentionally, knowingly, or recklessly causing bodily harm or injury to another person. Such an offence under Colorado law is a Class I misdemeanor. The offender can be punished with up to 18 months in jail, a fine of $10,000, or both. The defendant can seek self-defence, defence of others, lack of necessary intent, and false accusations as a defense to protect the charges made against him or her.

Alabama

In Alabama, a third-degree assault is defined in Section 13A-6-22(a)(1) of Alabama’s Code of 1975. third degree falls under a Class I misdemeanor. A person charged with third-degree assault may face harsh penalties ranging from large fines to lengthy incarceration. However, the charges are not that serious for third-degree assault in Alabama. Assault in the third degree is not prosecuted as felony assault, as is the case with second-degree assault. A person will be prosecuted for third-degree assault when he intends to and causes bodily injury to another, recklessly causes physical injury to another, causes physical injury to another in negligence through a deadly weapon, or when someone prevents or intends to prevent a peace officer from performing his duty and causes injury to any person.

A third-degree assault in Alabama includes the occurrence of a physical injury or the intention of a person to cause injury or harm through reckless or negligent conduct. Third-degree assault can result in a $500 fine and up to 180 days in jail, or both, depending on the circumstances. This is the punishment under the district court system; however, in the state court system, the same offence can result in a $6,000 fine and up to a year in jail. 

Washington

In Washington, the Revised Code of Washington’s Section 9A.36.031 states that a person may be charged with a third-degree assault if he is accused of one of the following conditions, provided the circumstances do not amount to second or first-degree assault. Any activity of assault on a school bus driver, assault on a driver of public transport, causing bodily harm to another with a weapon with criminal negligence, assaulting a firefighter, assaulting a police officer, assaulting a nurse, physician, or health care provider, or a person located in a courtroom, jury room, judge’s chamber, etc., assaulting a peace officer with a projectile stun gun, and with criminal negligence, causing bodily harm accompanied by pain that extends for a period sufficient to cause considerable suffering. The above-mentioned acts are generally classified as 4th-degree assaults or Class C felonies; however, when committed against the special above-mentioned category of people, they are classified as 3rd-degree assaults.

For first-time offenders, assault in the third degree is punishable by up to 1–3 months in jail or a fine, which may extend up to $20,000, or both. Repeat offenders, on the other hand, face prison sentences of up to five years. 

New York

Like most jurisdictions, New York also categorizes third-degree assault as the least severe offence. It defines third-degree assault under Section 120.00 of the New York Penal Code. In such an assault, injuries are relatively minor. For example, if someone punches another person in the eye, resulting in a black eye, or if someone pushes another person, resulting in a minor sprain or muscle injury, he or she is likely to be charged with third degree assault. In New York, the longest period of punishment for third-degree assault can be one year of imprisonment with or without a fine. Third-degree assault in New York is a class A misdemeanor.

Difference between assault and battery

People often confuse assault and battery as the same offences. However, the two things differ from each other. The battery is considered to be a more violent crime than assault. In a battery, a person touches another person in a harmful or offensive way, thereby causing him harm or injury. However, even in the offence of battery, the severity of the crime depends upon the injury or harm caused by the act of battery. In the offence of battery, fines and jail time are the common penalties given by the court; however, the period of jail and the amount of fine imposed are much larger as compared to assault. An assault happens when a person engages in conduct that causes harm or injury, like a threat, but a battery occurs when a person causes harm or injury to another. 

Legal help in the event of conviction under third-degree assault

As previously stated, assault charges can be filed against anyone who attempts or causes physical harm to another person. In such an event, it is important that a person understands the consequences that he or she might face, once he or she gets charged with assault. Seeking legal help is very essential, because the conviction may have some really serious consequences, be it long-term or short-term, in the life of the person charged with assault. Opting for a lawyer may help the accused person with the consequences of the charges, and help him chalk out a plan that may either help him get free from the charges or if not, it might at least help him in getting a shorter penalty. The lawyer may suggest some good points of defence, which may get the accused leniency from the court. The lawyer, with his experience, evaluates the entire incident from a legal perspective and then frames the points that may be used in defence to protect the client from the charges made against him.

Conclusion

In almost all jurisdictions under US law, the intent to cause bodily harm or injury is required to constitute a third-degree assault. In general, it is regarded as the least serious assault offence. Some general defences that a person can plead before the court in cases of third-degree assault are self-defence or that the act was committed due to negligence, lack of intention, etc. Apart from the short-term imprisonment and fine imposed, a person facing assault charges can face other consequences as well, like the presence of an assault conviction in his criminal record, the impact on employment, housing, credit opportunities, etc. Offences like domestic violence and menacing are two of the most common offences that come along with charges of third-degree assault.

Frequently asked questions (FAQs)

What are the most common forms of third-degree assault?

Assaulting a person attending a court hearing or assaulting a nurse, public official, police officer, or minority group are some of the most common assaults that are frequently reported in the US.

Whether third-degree assault is excused under a mistake of fact or not?

Generally, in a third-degree assault, the only requirement is general intent, i.e., the intention of performing physical contact or causing bodily harm or injury. However, it is important to note that a mistake of fact, despite being reasonable, does not excuse the act done by the offender, and he is hence charged with the offence of assault in the third degree.

References

• https://apps.leg.wa.gov/rcw/default.aspx?cite=9a.36&full=true 
• https://sopinskilaw.com/blog/what-is-third degree-assault-in-nebraska-a-simple-guide/ 
• https://www.lawfletcher.com/Criminal-Defense/Assault.aspx 
• https://www.hg.org/legal-articles/what-are-the-different-types-of-assault-31295 

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Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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This article is written by Ritika Sharma, a law graduate from the University Institute of Legal Studies, Panjab University. The article comprehensively analyzes the Federal Tort Claims Act (FTCA) and provides insights into the essentials, exceptions, limitations, and procedural requirements for tort claims under the Act. 

It has been published by Rachit Garg.

Introduction

According to the Legal Information Institute, “tort” can be defined as “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.” It serves two main purposes. Firstly, to deter others from committing or omitting something that causes injury. Secondly, to provide compensation to the plaintiffs. 

A tort claim obligates the defendant to pay compensation to the injured party. However, what if the defendant is working for the Federal Government? Before 1946, a tort committed by an employee of the government was never compensated. But after the introduction of the Federal Tort Claims Act (“FTCA”) in the year of 1946, compensation is now paid by the government on behalf of its employees.

Some of the instances where the US federal government was made to pay compensation under the FTCA were cases of minor accidents on federal property and sexual harassment of women by naval staff. The article provides a comprehensive discussion of the FTCA, along with its procedure for claims, exceptions, and statutory limitations. 

Background of the FTCA

Before the introduction of the FTCA, the defendants in tort cases where a federal government employee was involved could either be the employee themselves or the federal government.  However, until the mid-20th century, the principle of sovereign immunity was in effect. Hence, no individual could file a tort claim when a wrong was committed by the employees of the federal government. 

Due to the fact that federal government employees do not have enough financial resources to pay compensation, litigators have always preferred suing the federal government for the injuries caused by its employees. But even this recourse had its own obstacles, as the principle of sovereign immunity blocked this remedy for the plaintiffs. Consequently, the US citizens demanded private bills, which could provide relief to the people wanting compensation in these particular cases. 

This led to the formation of the legislation called the FTCA, which provided a means for the injured parties to get a waiver from the principle of sovereign immunity. It was held in the case of Evans v. United States (2017) that FTCA is “a limited waiver of the federal government’s sovereign immunity.”

What is FTCA

FTCA is the legislation that allows the common people to file a tort claim against the federal government when a tort is committed by the employees of the federal government. Section 2671 of the FTCA defines “federal agency” as the sum of “executive, judicial, and legislative branches, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.”

However, filing tort claims against the government could distract their attention from significant issues in the country; therefore, the FTCA has its own limit of application. The suit is filed for compensation or damages from the government in cases of loss of property as well as loss of lives or personal injuries. 

It is pertinent to note that a tort claim would be successful against the federal government, only when the employee of the federal government has acted negligently within the course of his or her employment. Thus, the essentials for a claim under the FTCA are:

• The employee of the federal government has committed a wrongful act or omission.
• The employee has acted in such a way in the course of the employment.
• The act or omission has resulted in the loss of life or property or led to some personal injury to the plaintiff.

The two significant elements that would make the tort claim successful under the FTCA are discussed in detail below:

The person who has committed the tort is an ‘employee’ of the federal government

The plaintiff’s claim against the federal government will not be covered under the FTCA if the person who has actually committed the wrong is not an employee of the federal government. Under the FTCA, the following categories of persons are included within the ambit of ‘employees’:

• The employees working for any federal agency;
• The people working as military or naval personnel; or,
• The people acting on behalf of any federal agency;
• In some cases, the members of the National Guard during their training period.

Another controversy surrounds the question of whether the federal government is also liable for tort committed by the independent contractors who are working on some project for the government. The general rule is that independent contractors are themselves liable for the torts they commit. However, the ruling differs from one court to the other.

In the case of the U.S. Tobacco Coop. Inc. v. Big S. Wholesale of Va., LLC  (2018), it was observed that “a contractor can be said to be an employee or agent of the United States within the intendment of the Act only where the Government has the power under the contract to supervise a contractor’s ‘day-to-day operations’ and ‘to control the detailed physical performance of the contractor.” 

The liability of independent contractors is determined with the help of Boyle’s Rule, examined later in this article.

The said employee acts or omits to act in the course of the employment

As already discussed, in order to file a tort claim against the federal government, it is essential that the employee have acted within the scope of their employment. In cases where the employee committed a wrong while acting in his or her private capacity, the plaintiff has a right to claim damages directly from the employee. The definition of the scope of employment of the federal government’s employees varies from state to state. The questions that help determine the liability of the federal government are whether the employee acted in the interests of his/her employer or whether the employee was given that particular task or employment during the course of which he or she committed the tort. For example, in the case of Berry v. Stevenson (1997), a member of the National Guard Training was driving a truck when it met with an accident, and the passenger got injured. However, in this case, it was held that as the driver was acting in his official capacity within the course of his employment, he could not be made liable to pay compensation. 

Role of Attorney General in Federal Tort Claims Act

Usually, the plaintiff is not aware of the conditions specified under the FTCA, and they only file a tort case against the employee. In such cases, the role of the Attorney General comes into play. The Attorney General can certify under the FTCA that the employee was working in an official capacity. This results in the substitution of the name of the employee with that of the federal government in the tort suit.

As several exceptions under the FTCA apply when the tort claim is against the federal government, this can be a disadvantage for the plaintiff. That is why the certification by the Attorney General can be contested by the employees, and they base their argument on the premise that the employee acted in his or her personal capacity while committing the wrongful act or omission. 

The Boyle’s Rule

Boyle’s Rule simply provides immunity to independent contractors in tort claims when they are working with federal agencies. This principle was established in the case of Boyle v. United Technologies Corp. (1988). In this case, a Marine helicopter co-pilot, David A. Boyle, died due to the crash of the helicopter, while the other three crew members were able to escape in time. The reason for his death was that Boyle could not open the emergency exit due to the water pressure. Boyle’s father filed a suit against Sikorsky Aircraft, the manufacturer, for poorly designing the escape system of the helicopter. However, the Supreme Court held that Sikorsky Aircraft cannot be held liable because it fulfilled all the elements of being a “military contractor.” 

This led to the emergence of Boyle’s defense of providing immunity to military independent contractors. However, this shield from the liability of the independent contractors can be defeated by the plaintiff in the three following ways:

• Firstly, by proving that the product or object of the independent contractor in question was approved by the federal government without much review;
• Secondly, by contesting the specifications of the product in question, and that it does not meet the desired objective of the project; or,
• Thirdly, by proving that the independent contractor did not disclose the ‘inherent dangers’ of the product to the federal government. 

Exceptions under the Federal Tort Claims Act

Unlike in cases where a tort is committed by a private person, the FTCA does not provide relief to the plaintiffs for each and every tort. The Act lays down various exceptions under Section 2680 which bar the plaintiffs from suing the federal government for some wrongful acts or omissions. These exceptions are listed below:

• Discretionary function exception; 
• Negligence in the transmission of letters or post;
• Claims from the customs of excise or customs laws;
• Some admiralty claims;
• Some tort claims within the ambit of the Trading with the Enemy Act of 1917;
• Claims arising out of the imposition of quarantine by the government;
• Intentional torts of the plaintiff;
• Claims from the fiscal operations of the Treasury;
• Claims arising from military or Coast Guard services;
• Foreign country exception;
• Claims from activities of the Tennessee Valley Authority;
• Claims from activities of the Panama Canal Company;
• Claims from activities of the Federal Bank.

Some of these exceptions are discussed in detail as follows:

Discretionary function exception

The discretionary function exception enables the employees to make reasonable policies fearlessly and also saves the government from getting engaged in time-consuming litigation. It applies when the following elements are proven:

The employee must be acting discretionarily

It will be considered that the employee is acting “discretionarily” when there are no set rules, regulations, or laws under the federal statutes that guide the course of action of the employee. In other words, when the employee has completed a given task in his or her own way. Also, this requirement is satisfied where the rules and regulations guide the actions of the employees, but they are framed in a permissive rather than a mandatory language. It is still debatable whether this exception applies to cases that have crossed constitutional limits. The majority of courts opine that the discretionary exception does not immune the tort actions in case they are unconstitutional.

The employee must be involved in a matter of a policy consideration

This implies that the act of the employee should relate to “established government policy,” i.e., the act should be associated with some social, political, or economic decision. The decision as to whether it involves a matter of public policy or not differs from case to case. For example, the matter related to the availability of resources in a prison or the level of security in prisons comes within the ambit of public policy and is well-included within this exception. 

Intentional tort

This refers to the willful commission of the wrong by the federal government employee that resulted in the injury to the plaintiff. This exception immunes the federal government from tort claims arising out of actions that amount to battery, assault, libel, slander, deceit, misrepresentation, etc. 

These actions were included within the ambit of exceptions, as it is unjust to make the government liable for intentional torts committed by the employees. Furthermore, these acts of battery, assault, etc., are difficult for the government to defend in a court of law.

Intentional tort committed by investigative machinery

In order to make the government liable in cases of abuse of power, the intentional tort committed by the investigative agencies has not been provided any shield under the exceptions. This was done with the introduction of a proviso in the FTCA exceptions provisions. For the case to fall under this category, it is essential that the employee of the federal government be an “investigative or law enforcement officer.” The following are included within the definition of “investigative or law enforcement officer”:

• Officers who execute searches;
• Officers who seize evidence;
• Officers who conduct arrests.

Foreign country exception

This exception shields the federal government from tort claims that are initiated by parties who get injured in a foreign land. The place where the tort was actually committed is of no significance, and this exception saves the government from getting involved in the legal mechanisms of foreign countries. This exception can be explained with the help of the case law in S.H. ex rel. Holt v. United States (2017). In this case, the plaintiff’s daughter suffered cerebral palsy due to her premature birth in Spain. The plaintiff’s argument was that this disability occurred because their request for “command-sponsored travel to a [USAF] base in Spain” was approved by the US Air Force with substandard medical facilities. In this case, the foreign country exception was applied since the injury occurred in another country, and the parents were not allowed to seek any compensation from the US Federal government.

Combatant activities exceptions

This exception immunizes the federal government against the torts committed by naval or military personnel, or the Coast Guard, during the time of war. This was introduced to give freedom to the military and naval forces to act fearlessly in times of emergency. 

The Feres Doctrine

This is also a type of military exception that bars military personnel from suing the federal government in cases where tort claims have arisen out of the military service. This doctrine is not codified in the FTCA; however, it emerged from the renowned case of Feres v. United States (1950). In this case, three tort claims were filed against the federal government. The first claim was based on the negligent act of the government in confining military personnel in an unsafe place where he died due to fire. The second person claimed that an army personnel left a towel in his stomach during the abdominal operation, and the third person stated that the negligent medical treatment of a person resulted in his death. While deciding on the matter, the Supreme Court introduced the Feres doctrine and rejected the claims of all three persons by asserting that during the course of military service, no member can file a tort suit against the federal government for the wrong acts or omissions of other fellow servicemembers. 

As a service member is not able to claim damages for injuries that occur during their service period, several scholars believe this to be an unjust principle. Consequently, several proposals have been introduced to reform this doctrine.

Limitations on damages

The FTCA also imposes restrictions on the number of damages that can be awarded by the courts. The amount of compensation always varies from one case to another. It also depends on the respective state laws. However, the FTCA states that in most cases, punitive damages or prejudgment interest are not awarded to the plaintiff. Also, the plaintiff is barred from claiming more than the damages that were initially claimed by him/her in the suit. This is to give the government an idea of the anticipated compensation or damages so that the government can carry out settlement procedures accordingly.

Nevertheless, the plaintiff can claim more damages than what was first stated by him/her in cases where there is new evidence or other intervening factors. 

Procedural Requirements under Federal Tort Claims Act

For a successful claim under the FTCA, the plaintiff must have presented the case to the relevant federal agency. The plaintiff can file a case against the federal government only when the said federal agency has refused to entertain or denied the plaintiff’s claim. This implies that the plaintiff must exhaust all possible remedies before filing the suit against the government.

The object of this rule is to limit the scope of unnecessary litigation, which is otherwise very expensive and time-consuming. 

Furthermore, it is crucial to note that the time limit to submit the written notification to the relevant federal agency is two years, after which no tort claim is accepted. This written notification can either be accepted or declined by the said federal agency. If this administrative claim is denied, then the plaintiff can file a suit under the FTCA within six months from the date of the intimation by an administrative agency about the denial of the claim. However, in some cases, the administrative agency takes unnecessary time in deciding on the matter. To address these issues, Section 2675(a) of the FTCA stipulates that in cases where the relevant agency takes longer than six months in arriving at a decision, it is assumed that the plaintiff has satisfied this requirement of the procedure, and he or she can rightly file the tort suit against the federal government. 

Proposals for the amendment of the Federal Tort Claims Act

The exceptions and limitations on damages stipulated in the FTCA restrict a variety of claims against the federal government, and a number of plaintiffs receive no compensation for the loss of property or persons or any personal injury. 

The following points reflect a set of proposals for the FTCA:

• To widen the applicability of the Act to include more types of claims and plaintiffs who can get compensation for their injuries.
• To eliminate or modify the exceptions and limitations to the principle of sovereign immunity that restricts the majority claims of the plaintiffs.
• To enlarge the definition of ‘employee’.
• To introduce exceptions or completely abrogate the Feres doctrine.

Conclusion

According to the Bureau of the Fiscal Service (Bureau), “the US Federal Government spends hundreds of millions of dollars annually to pay tort claims under the FTCA.” 

Clearly, the expectation that the large number of tort claims against the federal government would divert attention away from other important issues resulted in the creation of exceptions in the FTCA, and the plaintiff cannot sue the federal government for every tort committed by its employees. Also, there are limitations on damages that the plaintiff can claim from the federal government. However, these are some areas that are still debatable and have given rise to a number of proposals. The proposals for the amendment of the FTCA aim at widening the ambit of the federal government’s liability for the torts of its employees. 

Frequently Asked Questions (FAQs)

What is the principle of sovereign immunity?

The principle of sovereign immunity is derived from the statement “the king can do no wrong.” Therefore, it provides immunity to the federal government from being sued by the public, unless the government itself consents to the same. This is the reason that the Federal Tort Claims Act was introduced to help the victims of torts get compensation from the federal government.

Can governmental entities and corporations file a tort suit under the FTCA?

Yes, all US citizens and government entities, as well as private companies, can bring a tort action against the federal government under the FTCA.

References

• https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=1367&context=facarticles 
• https://crsreports.congress.gov/product/pdf/R/R45732 

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This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the federal and state labor laws that govern child labor in the United States of America.

It has been published by Rachit Garg.

Introduction

Child labor in America is an issue that dates back to its very foundation. In simple words, child labor can be defined as the unlawful employment of children at workplaces. This was done because children could be easily exploited and could be subjected to cheaper wages. Children were subjected to work in a variety of places, including mines and glass factories, which in turn were injurious to their health.

The issue of child labor was addressed for the first time in the year 1906, when the Beveridge proposal was introduced. This proposal sets forth conditions w.r.t the types of work wherein children could be employed. However, this proposal was not adopted. It was finally in the year 1930 that uniform legislation for the regulation and prohibition of child labor was introduced in the USA. This legislation was referred to as the Federal Fair Labor Standards Act (FLSA) 1938. This legislation saw multiple amendments from time to time and remains the primary law for the protection of children against all forms of exploitative child labor to this date.  

Now that we have a brief background on the evolution of child labor law in the United States of America, let us try and understand this law in detail.

The Federal Fair Labor Standards Act, 1938

This statute defined the term oppressive child labor under Section 203 (4)(l) of the Act. It states that child labor would be deemed oppressive when any person employs any child below the age of 16 in any occupation. An exception to this rule was provided wherein the parents or guardians of children below the age of 16 could employ their children in any work except mining, manufacturing, or any other form of hazardous employment as the Secretary of labor provided. The main objectives of this provision were to ensure that the health of the children was not affected due to hazardous working conditions and that the children could attend school without any interference. This provision further disallows children below the age of 18 to be employed in places having hazardous working conditions, which may be detrimental to their health. Also, the minimum age for non-agricultural employment was 14 years under the statute. The FLSA also covers provisions regarding minimum wages, keeping of records, payment of overtime wages, etc. Further, under multiple provisions, the FLSA calls for equality in the minimum wages, overtime wages, health and safety benefits, etc. that are provided to adults and children.

Employment of children aged 14 and 15 years

The statute, however, had several exceptions which allowed children to work. Children who are 14 or 15 years old were allowed to work after school hours for a limited period of time. However, this was subject to the permission of the parents or guardians of the children. The following guidelines were set for the same.

That no child aged 14 or 15 years shall be:

1. Allowed to work during school hours.
2. Allowed to work before 7 am or after 7 pm.
3. Allowed to work more than 3 hours on a school day and more than 18 hours a week during a school week.
4. Allowed to work more than 8 hours on a non-school day and more than 40 hours a week during non-school weeks.

The provisions regarding school hours are not applicable to the following:

1. Any student who has graduated from high school;
2. Any student who has to support a child and has been excluded from the compulsory attendance requirement by the state or any officer of the state;
3. Any student who has been ordered by the court not to attend school;
4. Any student who has been expelled; or
5. Any student whose employment rules and regulations are in conformity with the school attendance standards.   

Employment of children aged 16 years

Coming to children aged 16, they are allowed to work in multiple places and were allowed to do so without any specific permission or approval from their parents or guardians. The working hour restrictions are not applicable to them. The only condition for employment was that the place of employment should not have been declared hazardous by the Secretary of labor. Multiple occupations are prohibited hereunder and include employment in places involved in the manufacturing of explosives, mining, excavation operations, use of power operating machines for woodworks, metal works etc.

Employment of minors in places that use machinery to process wood products

Section 13(c)(7) of the FLSA allows minors between the ages of 14 and 18 to work in places that use machinery to process wood products for the following categories:

1. Any student who is exempted from compulsory school attendance by law or order of the court 
2. Any student who is under the supervision of an adult relative at the workplace or any other adult member of the same religious sect.

However, even though this exception allows minors to work in such places, children are still prohibited from operating any power-driven machines or performing any activity with respect to cleaning, oiling, and maintaining the machinery. Also, while working in such places, children have to mandatorily wear protective equipment.

Enforcement of FLSA

The Wage and Hour Division of the Department of Labor is the authority that is authorised to enforce the provisions under the FLSA. Apart from governing the provisions under this Act, they are also responsible for enforcing provisions of all labour policies under government contracts, farm labor, medical leave etc. The investigators under this department are authorised to collect information with respect to wages paid, hours of work and any data relating to compliance with the provisions under this act by the employers.

Penalties

Civil penalties

Any employer who violates the provisions of this act can be subjected to civil penalties in the form of payment of compensation to the child. This compensation does not exceed $10000 per child who has been employed in violation of the FLSA. These penalties can be increased for subsequent violations as well. Further, if any minor dies or suffers from any serious injury in the course of employment that is not in conformity with the provisions of this Act, the employer is liable for a civil penalty of up to $50,000. However, if the violation is willful or repetitive, the penalty can be extended to $100,000. 

On receipt of notice to pay a fine as a penalty for a violation of the act, the employer has a 15-day period to file an exception showing cause as to why he should not be charged with the alleged breach. Upon receipt of this exception, the matter is referred to the Chief Administrative Law Judge, who then schedules a hearing. The determination as to whether or not the employer has to pay the penalty depends on the evidence produced during such a hearing and the outcome of the same.

Hot goods injunction

Hot goods can be defined as goods that have been produced by illegal child labor. The shipping or delivery of any good that has been produced in the USA with the use of illegal child labor is strictly prohibited under the FLSA. The Wage and Hour Division is authorized to stop the interstate commerce of such goods, seize them, and disallow any further shipment of such goods.

An injunction to compel compliance

The Wage and Hour Division is authorised to file for an injunction against any employer who is violating the FLSA, seeking their compliance with the provisions of the FLSA. In the event of any further violation, such employers will be liable for contempt of court along with the violation of the relevant provisions under the act.

Criminal penalties

Any willful violation of the provisions of the act can be subjected to a fine of up to $100,000. For any subsequent convictions for similar offences or a willful violation of the provisions of the Act, employers can be subjected to a fine of $10000 or imprisonment for at most 6 months or both. However, these being the maximum prescribed penalties, the minimum penalties payable were very low. Thus, in 2010, the same was increased. 

Now, any employer who employs a minor below the age of 12 shall be liable to pay a minimum fine of $8000 per minor employed instead of the earlier amounts of $850 in the case of nonagricultural employers and $1,150 in the case of agricultural employers. For employing minors aged 12 and 13, the maximum penalty now stands at $6000 per minor employed instead of the earlier amounts of $850 in the case of nonagricultural employers and $1,025 in the case of agricultural employers. The maximum criminal penalty for employing minors aged 14 or below was also increased to $11,000 per minor, from the earlier sum of $10,000.

Other important legislation

The Wyden Bill, 1985

Ron Wyden, a Congressman of the 99th Congress, introduced the infamous Wyden Bill, which aimed to introduce provisions to protect minors from being employed in door-to-door selling groups. Reports suggested that minors were used by such employers to peddle both legal and illegal goods, endangering the lives of such minors. Moreover, the late-night working hours and the working environment in itself were considered a threat to the employed minors. Several flagrant violations of the FLSA were noted across the country, including non-payment of minimum wages, abuse of child workers, etc. 

However, the Department of Justice was against the introduction of such legislation. They believed that there was no evidence that minors were a target of such employers and were suffering from violations of the FLSA. Based on these conclusions, the Wyden Bill met its end. 

The Travelling Sales Crew Protection Bill, 2003

Senator Kohl of the 106th Congress, in 1999, was one of the first people to call for a law to regulate travelling crews that employed minors. Several reports suggested that travelling crews used to violate the provisions of the FLSA and would ill-treat minors and exploit them by offering meager wages. Even after such flagrant violations of the FLSA, they used to escape law enforcement officers due to the nature of their work as they fled from one state to the other and therefore escaped the jurisdiction of state law enforcement agencies. In lieu of the same, Senator Kohl introduced the Travelling Sales Crew Protection Bill. However, at the end of the 106th Congress, the bill also met its end and was not adopted. 

Once the 107th Congress was established, Senator Kohl put forth a proposal to introduce legislation to regulate the travelling sales crews. This legislation sought to amend the FLSA and was to introduce a provision that prohibited minors from being recruited for any employment wherein such minors would have to engage in door-to-door sales or any related work that would lead to them being away from their homes for more than 24 hours. This legislation further provided guidelines that regulated employers and also provided for an enforcement mechanism. This bill was first referred to the Committee on Health and Education as an amendment to Section 212 of the FLSA and was passed by the Committee. Thereafter, the Bill was referred to the Committee on Education and the Workforce, wherein the Bill met its end at the end of the 107th Congress. 

The Youth Worker Protection Bill, 2003

This issue was taken up by Representative Lantos in the 108th Congress and was then referred to as the Lantos Bill. However, no action proceeded in the 108th Congress. After its failure, he introduced the Youth Worker Protection Bill 2003, which provided for the prohibition of the employment of minors in peddling. This Bill was referred to the Sub-Committee on Workforce Protections and no further action was taken thereafter. The salient features of this bill are listed hereunder:

1. The term ‘minor’ was defined under the bill as any person who is at least 14 years old and is permitted to work under the FLSA. Any person between the ages of 16 and 18 will be deemed a minor if the employment in question is in a non-hazardous place and is not detrimental to their health. 
2. Each minor shall possess a work permit. This document shall consist of details regarding the name, gender, ethnicity, date of birth, consent of the parent, contact details of the parent etc. Also, the details of the employer and type of work should be mentioned on it. Such work permits can be revoked by the Secretary of labor or any authority designated by him for this purpose if the minor fails to comply with his school attendance requirements or the employment in question is injurious to his health. 
3. If any work injury is sustained by a minor, the Secretary of labor or any authority designated by him for this purpose should be informed of the same by the employer, concerned medical professional and the school in which the child is enrolled. 
4. Hours of work were prescribed to be the same as under the FLSA. 
5. Information related to work permits and records of the injuries sustained at work should be kept for at least 7 years. 
6. A state agency should be designated by the Secretary of labor to review the enforcement of the child labor laws and file annual reports regarding the number of hours devoted by government employees towards the enforcement of these laws. 
7. The Bill strictly prohibited the employment of minors in youth peddling. 
8. Children who are 14 years of age or older can be employed in agricultural operations after school hours. 
9. Children aged 10 to 12 were prohibited from being employed in any form of agricultural operation. 
10. The Secretary of labor was to issue a list of rules regarding hazardous operations for regulating the employment of minors in such areas. The rules were to be reviewed periodically every 5 years. 
11. Minors were prohibited from being employed in seafood processing, compactors, commercial paper balers and any other place wherein they would have to dispose of oil or any other liquid from fryers. 
12. It created uniform provisions regarding the employment of children in hazardous agricultural operations and also increased the penalties for any violation of the same. 

The Safe at Work Bill, 2005 

Congresswoman Rosa DeLaura introduced the Safe at Work Bill 2005  in November 2005. This bill was divided into two parts. Firstly, it provided for strict regulation for the Secretary of labor. Under this provision, the Secretary of labor was prohibited from entering into any agreement with any person wherein such person could be informed of an upcoming inspection or investigation against him for violations of the provisions of the FLSA. Secondly, it imposed a duty on the Comptroller General under which he had to collect information regarding violations of the FLSA, take action against each such recorded violation, and also make a record of the outcome of every action taken. Further, he had to do a comparative analysis of the extent of violations committed by large and small enterprises. However, this bill also met its end in 2006 after it was referred to the Committee on Education and Workforce. 

The Children’s Act for Responsible Employment 2005 (CARE)

The Children’s Act for Responsible Employment was introduced by Congress Representative Lucielle Roybal Allard in July 2005. This legislation primarily dealt with the issue of child labor in agriculture. Through this legislation, he proposed several amendments to the FLSA. 

Section 213(c) of the FLSA allowed children below the age of 16 to be employed in agriculture. However, he proposed the exclusion of this provision from the FLSA. It provided for two exceptions. Firstly, it allows children to be employed in agricultural operations if the employer is the parent or guardian of the minor. Secondly, it allowed the employment of minors on farms that were being operated by their parents or guardians. This legislation further sought to repeal Section 213(c)(4). This provision empowered the Secretary of labor to allow employers to hire children aged 10 and 11 to harvest crops. However, children could be employed only after school hours. 

Next, the bill sought to amend the criminal and civil penalties for the violation of provisions under the FLSA. Employers were to submit a report to the Secretary of labor regarding any serious work-related injury or illness caused to minors. The failure to submit such a report was penalised with a civil penalty of $7000 per minor. To enforce this and other provisions under the Act, the Secretary of labor was empowered to appoint at least 100 additional inspectors. Also, the Secretary was directed to issue rules and regulations governing the exposure of children to chemicals and pesticides during agricultural operations. He was to work in close coordination with the Administrator of the Environmental Protection Agency to issue and implement penalties for such exposures. 

Apart from the FLSA, this bill also sought to amend the Workforce Investment Act of 1998. It proposed that at least $10 million, or 4% of the amount prescribed for youth activities under the Workforce Investment Act, should be used for conducting youth activities under the Migrant and Seasonal Farmworker Programs.

This Bill was first referred to the Committee on Education and Workforce, then to the Sub-Committee on Workforce Protections, and thereafter to the Subcommittee on 21st Century Competitiveness. However, even after multiple referrals and considerations, the bill was not passed for adoption by either of these committees and met its end in October 2005. 

Child Modeling Exploitation Prevention Bill, 2005

Congressman Mark Foley pushed for the enactment of the Child Modeling Exploitation Prevention Bill 2005 in the House with the sole aim of protecting child models from abuse in the commercial world. Reports stated that minor girls from the age of 10 were being influenced either by their parents or outsiders in order to portray them on the internet as models for gaining viewership. In turn, these parents or outsiders earned money by fixing a subscription fee for accessing these photos. Mr. Foley was of the view that such actions promoted inappropriate forms of modeling and content created by children, and that these innocent children were being deceived and exploited. 

This Bill aimed at prohibiting such forms of exploitative child modeling. It proposed to amend Section 212 of the FLSA, and this new provision was to act as a legal prohibition against exploitative child modeling. The Bill defined exploitative child modeling as an act wherein a child below the age of 17 was used as a model to market the image of such a child in the expectation of financial gains. It strictly prohibited all people, including the parents of the child, from engaging in such practices and also prohibited any form of contractual relationship in this regard. The Bill also proposed imprisonment of at most 10 years for any person who engages in exploitative child modeling. 

After its introduction in the House, the Bill was first referred to the Subcommittee on Workforce Protections, then the Committee on Education and the Workforce, and finally to the Subcommittee on Crime, Terrorism, and Homeland Security. However, the Bill was not passed for adoption by these committees and therefore was not adopted by the House. 

The Children’s Act for Responsible Employment 2007 (CARE)

Congress Representative Roybal Allard pushed a revised version of the Children’s Act for Responsible Employment of 2005 as the Children’s Act for Responsible Employment of 2007. It had only differences from the previous Bill. Firstly, it removed the authority of the Secretary of labor to appoint additional inspectors; secondly, it restricted the use of funds under the Workforce Investment Act from being utilised for youth activities under the Migrant and Seasonal Farmworker Programs.

After its introduction in the House, the Bill was first referred to the Subcommittee on Workforce Protections. However, the Bill was not passed for adoption by this Committee and therefore was not adopted by the House. 

The Child Labor Protection Act, 2007

Multiple bills with the same name were introduced in the American House in the year 2007. It all began with the introduction of the Child Labor Protection Act 2007 in the House by Congress representative Lynn Woolsey. The penalties for violations of the FLSA were significantly increased under this bill. The maximum penalty to be paid by an employer per employee for violations of the FLSA was increased to $11,000 from $10,000. If any violation resulted in death or caused any serious injury to any minor below the age of 18, the employer was liable to pay a maximum penalty of $50,000 for each violation. This penalty was further increased to $100,000 in the case of repetitive or willful violations of the FLSA. Further, the bill also sought to increase the penalty for non-payment of minimum wages or overtime wages from $1,000 to $1,100. This Bill was referred to the Committee on Education and Labor and was passed by them; thus, it was finally adopted by the House in June 2007. 

Next in line was the Child Labor Protection Bill 2007 which was introduced in the US Senate by Senator Norm Coleman. This bill re-introduced the changes that were brought in by the Child l}Labor Protection Act, 2007, which was introduced by Mr. Lynn Woolsey. This bill was referred to the Committee on Health, Education, Labor, and Pensions. However, no further action was taken on the matter. 

Lastly, it was Senator Tom Harkin who introduced the Child Labor Protection Bill 2007 with the intent of amending the existing maximum and minimum penalties under the FLSA. Firstly, for every violation of the FLSA, it sought to implement a minimum civil penalty of $500 and a maximum civil penalty of $15,000 per child. The Bill proposed a minimum penalty of $15,000 and a maximum penalty of $50,000 for every child that suffers a serious injury at work or succumbs to death in the course of their employment. This penalty was to be further increased to $100,000 in the case of repetitive or willful violations of the FLSA.  Further, the Bill also sought to increase the penalty for non-payment of minimum wages or overtime wages from $1,000 to $1,100. The Bill also aimed to introduce criminal penalties for violations of the FLSA in the form of fines and imprisonment or both. This bill was referred to the Committee on Health, Education, Labor, and Pensions. However, no further action was taken on the matter, and thus, it was not adopted by the House. 

The Child Labor Safety Bill, 2008

Congress Representative Bruce Braley pushed for multiple amendments to the FLSA with the intent of increasing the existing penalties under the Act through the introduction of the Child Labor Safety Bill, 2008. For every violation that attracted a civil penalty, he proposed to increase the penalty from $11,000 to $50,000 for each violation. Further, it aimed to increase the penalty for any violation that results in the death of a minor or causes serious injury to a minor, from $50,000 to $100,000. For violations of the provisions of the FLSA, he proposed the introduction of a fine of $50,000 or imprisonment of at most 6 months or both. 

After its introduction in the House, the Bill was referred to the Committee on Education and labor. However, the Bill was not passed for adoption by this Committee and therefore was not adopted by the House. 

The Children’s Act for Responsible Employment 2009 (CARE) 

The Children’s Act for Responsible Employment, 2009 was introduced in the House by Congress Representative Roybal Allard with the aim of prohibiting the employment of minors in agricultural activities. However, this came with two exceptions. Minors could be directly employed by their parents on farms, or they could work on farms that were owned by their parents. This legislation further sought to repeal Section 213(c)(4). This provision empowered the Secretary of Labor to allow employers to hire children aged 10 and 11 to harvest crops. However, children could be employed only after school hours. 

Further, the bill sought to amend and increase the criminal and civil penalties for the violation of provisions under the FLSA. It also imposed an obligation on employers to submit a report to the Secretary of Labor regarding any serious work-related injury or illness caused to minors. Also, the Secretary was directed to issue rules and regulations that prohibited the employment of minors in agricultural operations where there was a risk of exposure to pesticides. 

This Bill was referred to the Subcommittee on Workforce Protections. However, the Bill was not passed for adoption by this Committee and therefore was not adopted by the House. 

The Children’s Act for Responsible Employment 2011 (CARE)

The penultimate edition of the CARE laws was introduced by the same Congressman who had introduced CARE 2009, i.e., Congress Representative Roybal Allard, and was referred to as the Children’s Act for Responsible Employment, 2011. It had identical provisions to that of the Children’s Act for Responsible Employment, 2009. This bill was referred to the Subcommittee on Workforce Protections. However, like CARE 2009, this bill was not passed for adoption by this Committee as well and therefore was not adopted by the House. 

The Children’s Act for Responsible Employment 2013 (CARE)

The Children’s Act for Responsible Employment, 2013 was the final edition and the final attempt by Congress Representative Roybal Allard to bring in multiple amendments to the provisions of FLSA. The salient features of this legislation are listed below:

1. The primary aim of this legislation was to increase the minimum age for being employed in agricultural operations from 14 to 16. It further increased the age of minors at which they could be employed in hazardous agricultural operations from 16 to 18. These changes were in line with the existing age for employment of minors in non-agricultural operations.  
2. It prohibited the employment of minors in hazardous activities involved in agricultural operations. The existing regime allowed such employment if the activity in question occurred on a farm owned and operated by the parent of the minor employed. The absolute prohibition was an attempt to repeal this exception and bring the law in line with other businesses that prohibited the employment of minors in hazardous activities even if the business was owned and operated by their parents. 
3. The existing regime allowed minors aged 12 and 13 to be employed on agricultural farms either with the consent of their parents or if their parents were employed on the same farm. However, these minors could be employed only in the activity of harvesting crops. Further, these minors could be employed even without the payment of minimum wages. This legislation aimed to remove all these provisions and prohibit the employment of minors aged 12 and 13 in agricultural operations absolutely.
4. Minors below the age of 18 were prohibited from working in agricultural activities where they could be exposed to pesticides. 
5. Criminal penalties for willful and repetitive violations of the provisions under the FLSA were introduced. 

This bill was referred to the Subcommittee on Workforce Protections. However, like its predecessors, this Bill was not passed for adoption by this Committee either and therefore was not adopted by the House. 

State labor laws for minors

Although the FLSA can be deemed as the backbone of child labor laws in the USA, each state has enacted their own labor law legislation that deals with child labor practices and compulsory school attendance. These state laws also vary from the federal legislation. 

Entertainment industry

The FLSA has no provisions that govern the entertainment industry. However, there are multiple states that have specific laws to govern the use of child labor in this industry. In California, children cannot be employed in the entertainment industry for more than 8 hours a day and not more than 24 hours a week. In New York, for children under the age of 16 to work in the entertainment industry, prior permission has to be sought from the mayor of the state, whereas in the state of Arkansas, prior permission has to be sought from the parents of such minors. In the state of Connecticut, permission has to be sought from the labor Commissioner. Other states like Delaware, Florida, Georgia, Illinois, Louisiana, Maryland, and Nebraska, require a work permit to be issued by the Department of labor for employing children below the age of 16. Some states also exempt the application of child labor laws in the entertainment industry. This includes the states of Arizona, Kansas, Kentucky, Maine, and Oklahoma. Some state laws provide that, on the order of a court, a portion of the earnings of a minor is to be set aside in the form of a trust. This includes the states of California, Kansas, Nevada, North Carolina, Tennessee, and Texas.   

Door-to-door sales

Referring to the much-debated occupation of door-to-door sales, states like Alaska, Florida, Idaho, Maine, Michigan, Missouri, and North Dakota have prohibited the same and have declared it to be hazardous employment, whereas the states of Oregon, Virginia, and Washington only prohibit employment in the occupation of door to door sales by minors below the age of 16 and allow minors aged 17 and 18 to be employed with special permission by the Department of labor. Other states, like Massachusetts, Ohio, Tennessee, Utah, and Wisconsin have allowed all minors to work in door-to-door sales. However, mandatory registration is to be  obtained for the same. In California, minors under the age of 6 are prohibited from being employed in this occupation. The state of Pennsylvania allows minors under the age of 16 to be employed in door-to-door sales with the consent of their parents, whereas the state of Texas has mandated parental consent for all minors below the age of 18. The state of Nevada prohibits minors under the age of 16 from being employed in door-to-door sales in counties where the population is 100,000 or more.

Working hours

While multiple states in the USA follow the minimum and maximum working hour standards prescribed under the FLSA, i.e., 8 hours per day and 40 hours per week when school is in session, there are some states that have different working hour regimes. The State of Iowa follows a different schedule for working hours and allows minors to work for only a maximum of  4 hours per day and 28 hours per week when school is in session. The State of Massachusetts allows minors to work for only a maximum of 3 hours per day and 18 hours per week when school is in session. New York state labor laws provide for a different set of rules regarding work hours for minors. 16 and 17-year-old minors are prohibited from working for more than 4 hours during the first four days of the week and not more than 8 hours for the remaining three days. The total working hours are limited to 28 hours every week. 

Minimum age standards

The FLSA prescribes a minimum age of 16 for children to be employed in agricultural operations. However, multiple states have come up with variations of the same. The states of California, Hawaii, New Hampshire, Washington, and Wisconsin have increased the minimum age to 18. These states allow 16-year-old minors to work in agricultural operations only if they are legally exempted from attending school. Apart from these states, the state of Illinois has reduced this minimum age to 12. Also, states like Delaware and Florida have exempted the age limitations for working in agricultural activities unless the child is to be employed in hazardous operations. The state of Pennsylvania has exempted the application of the FLSA to agricultural workers, including child laborers, and has made separate regulations to govern them under the laws governing seasonal farm workers. Under the FLSA, children are allowed to work in agricultural fields without any restrictions as to working hours. However, in Arizona, children are subject to strict working hours even while working in agricultural fields, i.e., they are restricted to working only for 8 hours on non-school days and for 3 hours a day when school is in session.

Minimum wage standards

Multiple states allow children to work for more time than what has been prescribed under the FLSA. This includes the states of Idaho, Illinois, Michigan, Mississippi, and Nebraska, among others. The aim behind these provisions is to make children more financially stable and independent. Under the FLSA, the minimum wage to be paid to employees is $7.25 per hour. However, there are multiple states that have increased the minimum wage. These states include Alaska, Arizona, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, Nevada, New York, Oregon, Rhode Island, South Dakota, Virginia, Vermont, Washington, and Colombia. The increased wages range from $8 to $16. The states of Georgia and Wyoming have reduced the minimum wage rates to $5.15 per hour. It is important to note that where federal and state laws have different minimum wage rates, the higher wage rate becomes applicable.

Case laws

1. In the case of Thirsty’s, Inc. v. U.S. Dep’t of Labor (1999), the District Court of Texas stated that the primary objective behind the enactment of the FLSA was to protect children from harm and prevent any form of interference with their schooling.
2. In the case of Shiloh True Light Church of Christ v. Brock (1987), the United States District Court of North Carolina, while discussing the significance of the FLSA, noted that the Fair labor Standards Act was reasonable and non-discriminatory legislation that was aimed at preventing the exploitation of children by employers. It further noted that the provisions of the act are constitutionally valid and can be enforced by the appropriate authority.
3. In the case of Clark v. SS Golf Group, Inc (2011), the United States District Court of Florida put forth a three-fold test to determine who falls under the category of an employer under the FLSA. It stated that for an entity to qualify as an employer the following 3 conditions must be satisfied:

• Whether the place of employment was within the entity’s premises.
• Whether the entity exercised any control over its employees.
• Whether the entity has any power to fire, hire or modify the terms of employment of the employee.

4. In United States v. Fisherman’s Fleet, Inc. (2007), the United States District Court of Massachusetts observed that the time limitation to file a claim for any alleged violation of the provisions of the FLSA or any claim of compensation arising under the act should be filed within a time period of 5 years from the date on which such a claim accrued. It further noted that a claim for damages does not include liquidated damages.
5. Commenting on the powers of the Wage and Hour Commission, the Court of Appeals of Oregon in the case of Northwest Advancement v. State (1988) observed that the Wage and Hour Commission is authorised to inquire and collect data at any time with respect to the wages paid, hours worked and conditions of employment of all minors who are employed by any entity.

Conclusion

The Fair Labor Standards Act has been the standalone Federal law for regulating child labor in the country. Although multiple states have come up with their own legislation, the primary objective remains the same, i.e., to allow the children to work within health and safety limitations and also provide them with adequate schooling opportunities. Also, it is pertinent to note that the state legislatures are able to fill the gaps in the federal statute by enacting provisions for the entertainment industry and by reducing or increasing age limits. What needs to be ensured is that the penalties and minimum wages under all the state laws, wherever less, are brought into uniformity with the federal statute. This will in turn ensure that employers do not see the lower minimum wage restrictions as an opportunity to abuse child labor. Thus, all these different statutes are coming together to protect children as a whole and allow them to grow in a stable environment.   

References

1.  https://www.everycrsreport.com/reports/RL31501.html#_Toc372703218 
2. https://laborcenter.uiowa.edu/special-projects/child-labor-public-education-project/about-child-labor/child-labor-us-history 
3. NOTE: CHILD LABOR LAWS AND THE IMPOSSIBILITY OF STATUTORY EMANCIPATION, 33 Hofstra Lab. & Emp. L.J. 121

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This article is written by Satyaki Deb, an LL.M. candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. In this article, we will discuss all the facets of the tort of conversion, including the role of intent, its features, the standard of liability, defenses, remedies under conversion, and more, from an analytical perspective.

It has been published by Rachit Garg.

Introduction

Tort of conversion is an intentional tort, which means that it is an act of wrongdoing that was done deliberately. It occurs when a person wrongfully takes, keeps, uses, or disposes of another person’s property without their consent and against their will. Conversion has been a common law tort since the 16th century and has been recognized in most common law jurisdictions.

Conversion is different from other forms of tort law because it doesn’t involve physical harm to a person but rather the wrongful taking or use of another person’s property. It is a civil wrong and the victim of the conversion can sue the wrongdoer for damages.

The key factor is that the property must be capable of being owned and must have been taken or used without the owner’s consent. Thus, the tort of conversion can be defined as the act of deliberately dealing with a chattel in a manner inconsistent with another’s rights, whereby that other is deprived of the use and possession of it. In this article, we will discuss all the facets of the tort of conversion, including the role of intent, its features, the standard of liability, defenses, remedies under conversion, and more, from an analytical perspective.

Role of Intent under Tort of Conversion

The key factor in the tort of conversion is intent. In order for a conversion to occur, the converter must have acted intentionally to take or use the property without the owner’s consent. This means that the converter must have acted with the intention of taking or using the property for his own benefit.

The converter may not have known that the property belonged to someone else or that their actions constituted a conversion. However, if they acted with the intent of taking or using the property without the owner’s consent, then they are liable for conversion.

In some cases, a mistake can lead to a conversion. For example, if someone takes a piece of jewelry that they think is theirs but actually belongs to someone else, then they may be liable for conversion if they did not take reasonable precautions to ensure that it was theirs.

Key features of the Tort of Conversion

The tort of conversion has many facets and features, the details of which are discussed exhaustively in the appropriate places in this article. For the sake of convenience, the key features of the tort of conversion are briefly stated as follows:-

• The dealing of the chattel by the defendant must be intentional in nature to constitute a tort of conversion, but the interference with the claimant’s right to possession may or may not be deliberate in nature. What this signifies is that even a bonafide defendant may be held liable for the tort of conversion because there is strict liability.
• The acts of conversion by the defendant must be inconsistent with the right to possession of the plaintiff.
• Like any other tort, for the tort of conversion, the nature of protected interests should be in sync with the remedies available to the plaintiff. If the court deems fit, the court can order the return of the converted chattel back to the plaintiff or claimant. But it is pertinent to remember that this remedy of return of converted chattel back to the claimant is not available as a matter of right even where the defendant retains possession of the goods. So, in this regard, there are some inconsistent areas under the tort of conversion as this tort performs a number of roles, but none of them is fully adequate in nature. Moreover, another cogent argument against the tort of conversion is that law of property should govern the return of goods back to the persons with appropriate interests and not by virtue of the law of obligations.
• Tort of conversion is said to try to do three very different things at the same time, viz:-
  • It allows the claimant to get back their property or their equivalent value from the wrongful possessor (like a recovery function or surrogate vindication).
  • It acts to compensate owners or rightful claimants for losses caused by past misdealings with their property (tort proper).
  • It tries to reverse unjust enrichment arising from the property or its proceeds which have fallen into the wrong hands (restitution).

According to Andrew Tettenborn, the above three functions of conversion should be kept distinct from each other to save innocent converters from being caught by the strictness of its liability. The last function of restitution requires a little more analysis. It is often the case that the defendant has an opportunity to use the chattel productively and may be unjustly enriched in this manner. Since a tort is basically a wrong, ‘unjust enrichment’ need not involve a wrong at all but seeks to correct transfers that should not have occurred. This makes the relationship between conversion and unjust enrichment very awkward, and this issue arises particularly in respect of available remedies for the tort of conversion because not everyone agrees that there can be remedies for unjust enrichment. According to Peter Birks, the correction of an unjust transfer should not be described as a remedy but as the “vindication of a right.”

Standard of Liability under Tort of Conversion

There is strict liability under the tort of conversion. What this means is that there need not be any knowledge of inconsistency with the claimant’s rights, or rather, there need not be any knowledge of the claimant’s rights at all. Thus, conversion may be committed by completely faultless conduct as well. Prima facie, this appears to imply that intention has no role in determining liability under the tort of conversion. But to be precise, “intention to assert dominion over the goods” is required for liability under the tort of conversion. The concept of “deliberate dealing” below will explain this nuance further.

Deliberate Dealing

In the case of Kuwait Airways v. Iraqi Airways Co. (Nos 4 and 5) [2002], Lord Nicholls laid down three elements in the general definition of conversion, viz:-

1. The defendant’s conduct was inconsistent with the rights of the owner or the claimant.
2. The conduct of the defendant was ‘deliberate’ and not accidental.
3. The conduct was extensive in a manner that the rights of the owner or the claimant were encroached and as a result, he was excluded from the use and possession of the goods.

In the opinion of Peter Cane, the second feature of conversion, where the conduct of the defendant needs to be deliberate and not accidental, creates a potential problem because it is not the word “deliberate” but the apparent contrast with “accidental” that creates the problem. The potential problem is best understood with an illustration. Let us consider A and B as having two identical bags (contents vary), and at the billing counter, A picks up and goes away with B’s bag, thinking B’s bag to be his own, thereby deliberately asserting dominion over B’s bag. Here, A’s conduct is both accidental and deliberate at the same time. This confusion created by Lord Nicholls can be explained and potentially solved by stating that an accidental taking of the claimant’s chattel may still be conversion, provided the defendant intends to exercise dominion over it.

The contrary case is also a real possibility, where the defendant deliberately takes possession of the claimant’s chattel but does not intend to exercise dominion over it. This is not conversion but may amount to trespass. Lord Nicholls also stresses this nuance in the Kuwait Airways case by describing the lack of intent as relevant as whether the owner is excluded from possession at all.

Another case is interesting to mention in this regard, which Lord Nicholls mentioned in the Kuwait Airways case. In this referred case, Fouldes v. Willoughby (1841), the plaintiff had paid the defendant to ferry his two horses across the River Mersey on the Birkenhead ferry. The defendant not only refused to transport them but also turned them loose. It was held not to be a conversion as the defendant did not want to assert dominion over the horses. This case beautifully illustrates the significance of intention to the tort of conversion and the difference between the tort of conversion and the tort of trespass to goods. To sum it up, in order to constitute a tort of conversion, the defendant needs to intend to make some use of them, either by himself or any of his agents, in a manner such that, owing to his actions, the goods are either consumed or destroyed, to the prejudice of the actual owner. So in this Fouldes case, if the defendant had supposedly thrown them into the river and drowned the horses, then it would constitute a tort of conversion as the chattel has been destroyed or changed in quality altogether.

Which goods can be ‘converted’ under Tort of Conversion

It is a very pertinent aspect to ponder as to what forms of property can be brought under the tort of conversion. It is an established general principle that only chattels (not land) may be converted. In other words, only tangible property can be converted. This principle was settled in the landmark case of OBG v. Allan (2007) by the House of Lords. So, in this case, the invalidly appointed receivers of the company were not liable under the tort of conversion for interfering with the contractual interests of the company (by bringing those contracts to an end and seeking settlements against contracting parties). On the contrary, a share certificate or a cheque is tangible property, and so these chattels may be converted. An example of a case of the conversion of a cheque is International Factors Ltd. v. Rodriguez (1979).

What interest in the chattels must the claimant have

Any plaintiff or claimant who wishes to sue under the tort of conversion must have the right to possession of such chattel at the time of the conversion. If the claimant fails to show this crucial prerequisite, then his action or claim shall fail. This is because the claimant needs to have a better interest than the defendant. Here “better interest” does not necessarily mean the best or ultimate right to possession. The claimant merely needs to demonstrate a better right to possession than the defendant at the time of the alleged conversion. What this implies is that even bailees or finders of goods may be able to sue for conversion if the bailed or found chattel is taken from them by someone with no better right to possess it than they do.

What is Right in Possession?

There is a difference between the legal concept of possession and the ordinary meaning of possession. Legally, the right to possess a chattel may vary depending on the purpose of possession and may be relative to the rights of others. 

When a person is protected by the right to possession, the law does not require such a person to prove his ownership. It is the burden of the defendant to justify the taking, detention, or possession of such chattel. This presumption in favor of possession also imposes respect for possession, irrespective of the method by which possession was obtained. To frame it precisely there are rights to possess and rights that flow from acquired possession. Both British and American law use the word “title” to indicate the “right to possess.” Interestingly, it is possible to have two or more titles to a chattel, one of which is a stronger title than the other. Suppose A makes a wooden bat but unfortunately loses it. B finds the bat. A can claim it from the finder, B. But if A does not claim the bat from B, it is B who will have a title against everyone in the world. In other words, A has a better right to possess the bat than B, but B also has a better right to possess the bat than anyone else except A.

The Relative Nature of Possessory Rights

The above discussion on the right to possession clearly shows the relative nature of the same, and such a nuance warrants a more elaborate case law-oriented analysis. In the case of Parker v. British Airways Board (1982), a passenger came across a gold bracelet in an executive lounge occupied by the defendant. He handed it over to an employee of the defendant and requested that, in case the actual owner is not found, it be returned to him. It was not claimed, and the defendant sold it for £850. The passenger (plaintiff) sued the defendant under the tort of conversion and successfully recovered £850 as damages. This was because the plaintiff, as the finder, had relatively better rights to it than the whole world except the actual owner or one who could assert a prior right to keep the chattel, which was in force at the time the finder took the chattel under his care and control.

It may be rightly wondered, if the right to possession is relative, as explained above, then what happens when a thief has stolen a chattel, the chattel is recovered by the police, but the actual owner cannot be found? In such cases, will the thief have the better title to possess it? In the event the police have no statutory power to retain the stolen goods, it is indeed the thieves that can successfully claim or recover the stolen property from the police as seen in cases like Costello v. Chief Constable of Derbyshire Constabulary (2001), Gough v. Chief Constable of West Midlands Police (2004). To reiterate the fundamental aspect of this nuance, if the lawful owner is found, then the stolen goods must be returned to them.

What amounts to conversion

Suppose A commits a tort of conversion against B where without legal justification he does any of the following in relation to a chattel belonging to B:-

• A possesses the chattel but fails to return the same to B upon his demand.
• A takes it from B or from a third party.
• A receives it from a third party C who has no title to it.
• A physically transfers the chattel to a third party C by gift or sale or otherwise in a manner that destroys B’s title to it.
• A destroys it.
• Being a bailee, A wrongfully loses it or allows it to be destroyed.
• Having obtained it wrongfully, A wrongfully keeps or continues to use it.

If A does more than one of the above-mentioned acts, then A has done two or more acts of conversion, and in such cases, subject to the laws of limitation, B can choose to rely on any individual conversion to claim damages.

Remedy for Tort of Conversion

If a person is found liable for conversion, the owner of the property may be entitled to damages. The amount of damages depends on the value of the property taken or used, as well as any other expenses that were incurred as a result of the conversion.

The court may also order the converter to return the property to the owner. If the property cannot be returned, the court may order the converter to pay the owner the full value of the property.

In some cases, the court may also grant the owner of the property an injunction, which is an order that prevents the converter from using or disposing of the property in any way. This is typically used to protect the owner’s rights to the property and prevent any further harm. Thus, the remedies are:

1. Compensatory Damages: The victim of a conversion can bring a lawsuit to recover any money lost due to the defendant’s wrongful act, such as the cost of replacing the item or any additional costs associated with the loss.
2. Punitive Damages: Punitive damages are awarded in cases of malicious or egregious conduct and are meant to punish and deter future similar acts.
3. Restitution: The court may order the defendant to return or restore the property or its value to its rightful owner, if possible.
4. Injunction: An injunction is an order from a court that requires a person or entity to cease certain activities, such as continuing with a conversion of property.
5. Nominal Damages: A victim may be awarded nominal damages if they have suffered no actual losses but have still had their legal rights violated by another’s actions.
6. Return of goods: Where the defendant is still in possession of the converted goods then the claimant may seek their return.

Defenses for Tort of Conversion

The following can act as defenses for the defendant in a suit for conversion:-

1. Lack of Intent: The defendant did not intend to convert the plaintiff’s property. But since strict liability is there for conversion, this defense fails in most cases.

2. Good Faith: The defendant believed in good faith that he or she had a right to take possession of the property in question.

3. Statute of Limitations: The plaintiff has waited too long to bring a claim for conversion, and the statute of limitations has expired.

4. Necessity: The defendant took the property in order to prevent a greater harm from occurring, such as theft or destruction of the property by an outside party.

5. Laches: The plaintiff unreasonably delayed bringing suit, and this delay prejudiced the defendant’s ability to defend himself or herself against the conversion claim.

6. Another defense is that the converter had a legal right to take or use the property. This could include a court order or a contract that gave them permission to take or use the property.

7. The converter or defendant may be able to prove that the owner of the property consented to their taking or using the property. This could include a verbal agreement or a written contract.

Conclusion

The tort of conversion of goods is the deliberate and wrongful interference with goods in a manner inconsistent with another’s right (who has a better title to the goods) whereby that other is deprived of the use and possession of it. The common law action to recover the damage for conversion of goods is called trover. The tort of conversion has more practical importance than trespass to goods because conversion, by contrast, involves all actions that are inconsistent with the claimant’s title to the goods, whereas trespass to goods, like all forms of trespass, is restricted to direct interferences.

References

• https://www.law.cornell.edu/wex/conversion#:~:text=Conversion%20is%20an%20intentional%20tort,exert%20property%20rights%20over%20it.
• https://www.stimmel-law.com/en/articles/conversion-basic-tort
• https://conversion.uslegal.com/civil-liability-for-conversion/ 

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Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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