1. Compare civil and criminal law.
Law can be classified in a variety of ways. One of the most general
classifications divides law into civil and criminal. A basic definition of civil
law is “the body of law having to do with the private rights of individuals”
(Yourdictionary.com, 2010). As this definition indicates, civil law is
between individuals, not the government. Criminal law involves regulations
enacted and enforced by government action, while civil law provides a
remedy for individuals who need to enforce private rights against other
individuals. Some examples of civil law are family law, wills and trusts, and
contract law. If individuals need to resolve a civil dispute, this is called civil
litigation, or a civil lawsuit. When the type of civil litigation involves an
injury, the injury action is called a tort.
Characteristics of Civil Litigation
It is important to distinguish between civil litigation and criminal
prosecution. Civil and criminal cases share the same courts, but they have
very different goals, purposes, and results. Sometimes, one set of facts gives
way to a civil lawsuit and a criminal prosecution. This does not violate
double jeopardy and is actually quite common.
Parties in Civil Litigation
In civil litigation, an injured party sues to receive a court-ordered remedy,
such as money, property, or some sort of performance. Anyone who is
injured—an individual, corporation, or other business entity—can sue
civilly. In a civil litigation matter, the injured party that is suing is called
the plaintiff. A plaintiff must hire and pay for an attorney or represent
himself or herself. Hiring an attorney is one of the many costs of litigation
and should be carefully contemplated before jumping into a lawsuit.
The alleged wrongdoer and the person or entity being sued are called
the defendant. While the term plaintiff is always associated with civil
litigation, the wrongdoer is called a defendant in both civil litigation and a
criminal prosecution, so this can be confusing. The defendant can be any
person or thing that has caused harm, including an individual, corporation,
or other business entity. A defendant in a civil litigation matter must hire
and pay for an attorney even if that defendant did nothing wrong. The
right to a free attorney does not apply in civil litigation, so a defendant who
cannot afford an attorney must represent himself or herself.
Goal of Civil Litigation
The goal of civil litigation is to compensate the plaintiff for any injuries and
to put the plaintiff back in the position that person held before the injury
occurred. This goal produces interesting results. It occasionally creates
liability or an obligation to pay when there is no fault on behalf of the
defendant. The goal is to make the plaintiff whole, not to punish, so fault is
not really an issue. If the defendant has the resources to pay, sometimes the
law requires the defendant to pay so that society does not bear the cost of
the plaintiff’s injury.
A defendant may be liable without fault in two situations. First, the law that
the defendant violated may not require fault. Usually, this is referred to
as strict liability. Strict liability torts do not require fault because they do
not include an intent component. Strict liability and other intent issues are
discussed in detail in Chapter 4 “The Elements of a Crime”. Another
situation where the defendant may be liable without fault is if the defendant
did not actually commit any act but is associated with the acting defendant
through a special relationship. The policy of holding a separate entity or
individual liable for the defendant’s action is called vicarious liability. An
example of vicarious liability is employer-employee liability, also referred to
as respondeat superior. If an employee injures a plaintiff while on the job,
the employer may be liable for the plaintiff’s injuries, whether or not the
employer is at fault. Clearly, between the employer and the employee, the
employer generally has the better ability to pay.
Example of Respondeat Superior
Chris begins the first day at his new job as a cashier at a local McDonald’s
restaurant. Chris attempts to multitask and pour hot coffee while
simultaneously handing out change. He loses his grip on the coffee pot and
spills steaming-hot coffee on his customer Geoff’s hand. In this case, Geoff
can sue McDonald’s and Chris if he sustains injuries. McDonald’s is not
technically at fault, but it may be liable for Geoff’s injuries under a theory of
respondeat superior.
Harm Requirement
The goal of civil litigation is to compensate the plaintiff for injuries, so the
