A. Definitions
B. Torts to the Person
C. Intentional Torts to Property
D. Unfair Interference With Economic Relationships
E. Fraud, Misrepresentation, and Deceit
F. Negligence
G. Vicarious Liability
H. Product Liability
I. Damages
A. DEFINITIONS
Sec. 1 Words and Terms Defined
a. Apprehension
- Awareness of a physical act likely to occur.
b. Consent
- A voluntary agreement to do something or allow something to be done
which is proposed by another.
c. Contributory
Negligence - The negligence of the party complaining of injury.
d. Intention
- An act is performed intentionally when the act is performed with
the purpose of causing the intended harm or when the act is performed
with knowledge to the substantial certainty that the intended harm
will result.
e. Landlord
- One who rents land or dwelling to another.
f. Minor
- A child under the age of 18 years.
g.
Tort - A wrongful act or omission which causes injury to another.
B. TORTS TO THE PERSON
Sec. 1 Assault
a. A
party who acts in such a manner as to intentionally place person,
without his consent in a reasonable apprehension of immediate battery,
is liable to the party for any pain or injury caused by the conduct.
b. Apprehension
must be such as it would normally be aroused in the mind of a reasonable
person.
Sec. 2 Battery
a. A
party who intentionally touches another person or something he's in
contact with, without his consent, in a harmful or offensive manner
is liable for any pain or injury caused by such conduct.
b. A
party who intends to commit an assault or battery on one person, and
by accident, commits an assault or battery on a third person, is liable
to such third person for any injury caused by reason of his conduct.
Sec. 3 Defenses to a Lawsuit for Assault and/or
Battery
a. Consent
b. A
reasonable degree of force may be used in self-defense when there's
a reasonable apprehension of battery present.
c. A
reasonable degree of force may be used to defend real property after
a request to depart has been made or where circumstances exist under
which such request would be futile.
d. A
reasonable degree of force may be used to recover personal property
when the party is in immediate hot pursuit of the offender.
e. A
reasonable degree of force may be used by a parent or by a teacher
with a parent's permission, to discipline a minor.
f. A
person is justified in using force which is intended or likely to
cause death or serious bodily injury only if he reasonably believes
that such force is necessary to prevent death or serious bodily injury
to himself or a third person.
Sec. 4 False Imprisonment
a. A
party who intentionally detains a person against his will in such
a manner as to deprive that person of his liberty is liable to such
person for any emotional, mental, or physical injury caused.
b. The
following are defenses to an action for false imprisonment:
(1)
A legal right to confine.
(2)
Citizen arresting a party in a reasonable belief that a felony has
been committed by that party.
(3)
A citizen arresting a party for a misdemeanor committed, in his
presence, by that party.
Sec. 5 Intentional Infliction of Emotional Distress
A party
who intentionally causes severe emotional distress by extreme and outrageous
conduct is liable for the pain and suffering caused by his conduct.
Sec. 6 Defamation of Character and Injury to Reputation
a. A
party who intentionally in written or oral form makes a false statement
to a third person which exposes someone to public hatred, contempt,
or ridicule, and causes damage to such party's reputation is liable
for the damages caused by such conduct. A lawsuit for defamation doesn't
survive the death categories.
b. Slander
is oral defamation. No lawsuit can be brought for slander without
proof of special damages unless it falls within one or more of the
following categories:
(1)
Loathsome disease.
(2)
Accusation of a crime.
(3)
Statements adversely affecting a party in his trade or business.
c. Libel
is written defamation. A lawsuit for libel may be brought without
proof of special damages.
d. Defenses
to lawsuits for defamation of character:
(1)
Truth.
(2)
Statements in the course of Court proceedings or Tribal Council
or committee proceedings.
(3)
Statements of opinion made without malice.
Sec. 7 Invasion of the Right to Privacy
a. A
party who intentionally violates the privacy of another in such a
way as to be objectionable to a person's reasonable sensitivity is
liable to the person for the distress caused by the conduct.
b. A
party who uses the name, picture, or personality of another for a
commercial use, without permission, is liable to such person for damages
caused by such conduct or the reasonable value of the use of his name,
picture, or personality.
c. A
party who discloses nonpublic information concerning another in such
a manner as to offend a reasonable person's sensibility is liable
to the person about whom the disclosure was made, for any damages
caused by the disclosure.
C. INTENTIONAL TORTS TO PROPERTY
Sec. 1 Trespass to Real Property
a. A
party who voluntarily enters real property in the possession of another
is liable to the party in possession for injury caused by the invasion.
b. Defenses
to lawsuits for trespass through, to or upon real property:
(1)
Consent of the person in possession of the property.
(2)
Entry made to reclaim property on the land of a person in possession
of said property, after reasonable demand has been made and when
the property is on the land through no fault of the trespasser.
(a)
This section doesn't apply to goods delivered under an installment
sales contract.
(3)
Entry made necessary in order to benefit the public.
(4)
Entry pursuant to a Court Order.
(5)
Entry by mistake induced by the conduct of the party in possession.
Sec. 2 Interference With Personal Property
A party
who intentionally interferes with the personal property of another,
is liable for any damage suffered by reason of such conduct. Damage
may include loss of use of property, as well as injury to the property.
D. UNFAIR INTERFERENCE WITH ECONOMIC RELATIONSHIPS
Sec. 1 Interference With Contractual Relations
A party
who intentionally interferes with an existing contractual relationship
is liable for damages, caused by the interference, unless the contract
is illegal or he is privileged to interfere.
Sec. 2 Interference With Prospective Economic Advantage
A party
who intentionally interferes with the prospective economic advantage
of another person is liable, in damages, for any injury caused by that
conduct.
E. FRAUD, MISREPRESENTATION, AND DECEIT
A party
who, intentionally or in reckless disregard of the truth, misrepresents
a past or present fact to another person, intending that the misrepresentation
be relied on, is liable for damages suffered in reliance on such misrepresentation.
F. NEGLIGENCE
Sec. 1 In General
a. A
party who has a duty to use and fails to use reasonable care thereby
causing harm to the person or property of another, is liable for the
harm caused by reason of his conduct.
b. Any
person, within the jurisdiction of the Tribe, who renders emergency
care or assistance in an emergency, gratuitously and in good faith,
shall not be held liable for any civil damages as a result of any
act or omission, not amounting to gross negligence, by such person
in rendering the emergency care or assistance or as a result of any
act or failure to act, not amounting to gross negligence, to provide
or arrange further medial treatment for the injured person.
c. A
party who causes harm to an unborn child, able to live apart from
his mother, by failing to use reasonable care is liable to such child
for injuries caused by reason of his conduct.
Sec. 2 Special Situations Involving Reasonable
Care
a. Where
it must be determined whether a person engaged in a profession has
acted with reasonable care, that decision should be made by deciding
whether the care exercised was in accordance with the skill and learning
commonly possessed by a member in good standing in the same profession,
in that area.
b. A
party who violates a Section of this Law and Order Code or other law
applicable within the boundaries of the Reservation requiring a certain
standard or conduct to be exercised to protect a class of persons
will be presumed to have failed to have used reasonable care if anyone
in the class has been injured as a result of the violation. The law
violated must protect against the type of harm suffered.
c. Where
a party in exclusive control of an instrumentality which causes an
accident which would not have ordinarily occurred without negligence,
that party will have been presumed to have failed to use reasonable
care.
Sec. 3 Proximate Cause
Any party
causing physical injury to another as a result of his failure to use
reasonable care is liable for all harm suffered, including injuries
that one could not reasonably foresee. A party causing harm to property
of another as a result of his failure to use reasonable care is liable
only for damages which are reasonably foreseeable.
Sec. 4 Comparative Negligence
a. The
contributory negligence (fault) of a plaintiff shall not prevent a
recovery if the negligence of the person seeking recovery is less
than the negligence of the person against whom the recovery is sought.
Any damages allowed shall be diminished in proportion to the amount
of negligence attributable to the person seeking recovery.
b. Where
the recovery is allowed against more than one defendant in such an
action, the defendants are jointly and severely liable to the plaintiff,
except that a defendant whose negligence is less than that of the
plaintiff or his decedent, is jointly and severely liable to the plaintiff
only for that portion of the judgment which represents the percentage
of negligence attributable to him.
Sec. 5 Negligent Liability in Real Property Cases
a. A
party in possession of land has a duty to use reasonable care to keep
his land safe for all person who may, foreseeably, enter his land.
Whether a party in possession of the land has exercised his duty to
use reasonable care depends partly on the likelihood of entry.
b. Landlord
liability:
(1)
A landlord is liable, to those injured, by his failure to use reasonable
care on the premises controlled by him.
(2)
A landlord is liable, to those injured, by his failure to use reasonable
care where the person(s) are injured by an unreasonably dangerous
condition known to the landlord and concealed, by him, when the
property was turned over to the tenant.
(3)
A landlord is liable for injuries caused by his failure to use reasonable
care when he agreed to make and failed to make repairs.
Sec. 6 Strict Liability
a. In
certain instances, a party will be liable for injuries suffered in
the absence of negligence.
b. The
possessor of wild animals is strictly liable for injury caused by
such animal to another. A wild animal includes any domesticated wild
animal otherwise considered tame by its possessor
c. One
who engages in ultrahazardous activity will be held strictly liable
for any reasonably foreseeable damage caused to person(s) or property
by such activity
G. VICARIOUS LIABILITY
Sec. 1 In General
a. The
parent(s) or guardian of a minor child is liable for ail damage caused
by the intentional torts of that child Liability, under this Section,
will not exceed $10,000.00
b. Any
liability imposed upon a wife, husband, son, daughter, father, mother,
brother, sister or other immediate family member arising out of his
driving and operating a motor vehicle upon a highway with the permission,
expressed or implied, of such owner shall be jointly and severely
liable with his or her wife, husband, son, daughter, father, mother,
brother, sister, or other immediate family member for any damages
proximately resulting from such negligence or willful misconduct,
and such negligence or willful misconduct shall be imputed to
the owner of the motor vehicle for all purposes of civil damages.
(1)
In any action against an owner on account of imputed negligence
as imposed by this Section, the operator of the motor vehicle whose
negligence is imputed to the owner, shall be made a party defendant
if service of process can be had upon the operator as provided by
law. Upon recovery of judgment, recourse shall first be had against
the property of the operator so served.
c. An
employer is liable for the negligence of his employee within the scope
of employment for injuries caused to the person or property of a third
person, except when the Tribe is the employer.
H. PRODUCT LIABILITY
Any seller
of goods who places an article on the market, which is in a defective
condition, unreasonably dangerous to the user, or any third person who
may foreseeably be injured, is liable for damages caused by the defective
condition of the product.
I. DAMAGES
Sec. 1 General Damages
Those damages
which necessarily result from a certain type of injury.
Sec. 2 Special Damages
a. Those
damages which are the actual, but not necessary, result of the injury
complained of and which occur by reason of special circumstances or
conditions. Special damages may include, but are not limited to:
(1)
Loss of wages.
(2)
Medical expenses.
(3)
Property damage.
Sec. 3 Punitive Damages
Those damages
awarded at the discretion of the Court in order to punish a wrong doer
for his malicious act.
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