In some circumstances, custom may be used as proof of negligence in a personal injury action.

For example, a worker in a sawmill is injured when he or she accidentally puts his or her hand onto the blade of an electric saw. The worker files a personal injury action against the owner of the sawmill, claiming that the owner negligently equipped the sawmill with unsafe saws. At trial, the worker proves that the saws in the owner’s sawmill did not have finger guards. The worker seeks to introduce evidence that all other sawmills in the vicinity used saws with finger guards. The court will probably admit this evidence because industry custom is usually admissible in a case of this sort.

However, custom is never conclusive proof of negligence. A defendant may rebut a plaintiff’s evidence of custom. In addition, a jury is free to reject evidence of custom.

Federal Government Employees

The Federal Tort Claims Act (FTCA) applies to claims for personal injury caused by the negligence of a federal government employee who is acting within the scope of his or her employment, under circumstances where a private person would be liable under state law. Therefore, the FTCA applies only to personal injury actions that arise from the negligence of a federal government employee.

Under the FTCA, federal government employees include any officer or employee of a federal government agency and members of the United States Armed Forces and National Guard.

Contractors

The FTCA does not apply to personal injury actions that arise from the negligence of contractors. Generally, a person is a contractor (rather than a federal government employee) if:

(1) the government does not have the power to control the physical performance of his duties; and

(2) the government does not supervise his day-to-day operations.

A plaintiff may not file a personal injury action against the federal government under the FTCA for injuries that arise from a contractor’s negligence.

Apart from legislation granting a right to sue for a specific harm, personal injury law generally consists of tort law and the civil procedure for enforcing it. Most scholars agree that tort law has four purposes: (1) compensation for damages; (2) financial responsibility; (3) deterrence; and (4) avoiding self-help. This article discusses the purpose of compensation.

Legal Injury

Every victim of a tort suffers at least one legal injury. A legal injury is a violation of a legal right. The legal injury usually causes financial harm to the victim, such as the cost of repairing or replacing something or the cost of treatment for a some physical injury. Because a legal injury usually causes financial harm to the victim, justice requires that the victim be entitled to receive financial compensation from the person who committed the tort for the financial harm caused. Indeed, tort law does generally provide financial compensation for the financial harm caused by a violation of tort law.

Damages

In tort law, the financial harms suffered by a victim are known as damages. The financial compensations that tort law awards to victims — the financial compensation that tort law obligates the person who committed the tort to pay — are also known as damages. The person who committed the tort is said to be liable for those damages. In short, tort law establishes liability for damages.

Kinds of Damages

In tort law, there are three kinds of damages.

Compensatory damages are damages designed to pay for the actual harm that the victim suffered as a result of a legal injury. Compensatory damages are designed to make the victim “whole.”

Nominal damages are damages designed to vindicate the victim’s right to sue were actual harm has not been suffered as a result of a legal injury. Because actual damages are an element of the tort of negligence, nominal damages cannot be awarded in a negligence case.

Punitive damages are damages designed to punish the person who committed the tort whether or not actual harm has been suffered as a result of a legal injury. Punitive damages are awarded when the conduct of the person who committed the tort is found to be malicious, wanton, or willful.

The law provides everyone with some basic rights to privacy. Privacy is the general right to be left alone and free from unwanted publicity. Unreasonable invasion of one’s privacy causes harm.

There are four well-established lawsuits for invasion of privacy: appropriation; false light; intrusion; and disclosure. In most states, the rights under these lawsuits are personal. Most end when a person dies, and they do not apply to corporations and other legal entities.

This article discusses the invasion of privacy lawsuit known as appropriation.

Your Name, Likeness, or Personality

People have a general right to not be exploited without their consent. Appropriation is defined as the use of a person’s name, likeness, or personality for the benefit of another. The classic example of appropriation is someone using your picture to advertise a product, without your consent. The classic example of consent to appropriation is the business of modeling, whereby a person’s likeness is used in the advertising of clothing.

The Elements of Appropriation

The basic elements of appropriation are (1) unreasonably, either intentionally or negligently, (2) using a person’s name, likeness, or personality for the benefit of another. Special damages and punitive damages, if any, must also be proven.

Defenses to Appropriation

The defendant in an appropriation lawsuit can challenge the plaintiff’s proof of the basic elements of appropriation. For example, the defendant may be able to show that the person pictured in an advertisement is merely someone who resembles the plaintiff but, in fact, is not the plaintiff.

The defendant in an appropriation lawsuit can defend on the basis that what the plaintiff contends is private is actually public. Matters of public record are not private. If a person is involved in a matter of legitimate public concern, a “newsworthy” event, the person becomes a public figure with respect to that event, regardless of the person’s intentions or desires. If a person is a public official or public figure, his or her reasonable expectations of privacy are dramatically reduced. As a practical matter, a public official or public figure cannot successfully sue unless the invasion of privacy is outrageous or done with actual malice.

A common defense to invasion of privacy is consent, express or implied. A person who accepts money or other considerations in exchange for the invasion of privacy is said to have sold his or her “rights.” Also, some defendants, such as government officials, have immunity.

Note that, unlike a defamation lawsuit, truth is not a defense. Because the interest being protected by an appropriation lawsuit is a person’s privacy, not a person’s reputation, truth is irrelevant.

Although there have been causes of action in the past for breach of a promise to marry based on contract law, there has never been a cause of action in tort for alienation of affections with regard to an engaged person or for sexual intercourse with an engaged person.

An engaged person is not entitled to maintain an action against a third party for alienation of affections. It does not matter whether the third party is a parent of the engaged person or whether the third party is competing for the affection of the engaged person. Also, it does not matter if the third party has ill will towards the engaged person.

The reason that an engaged person is not entitled to maintain an action against a third party for alienation of affections is that alienation of affections requires an existing marital relationship. If the engaged person is not married to another person, he or she is not entitled to maintain the action.

An engaged person is also not entitled to maintain an action against a third party for criminal conversation or for sexual intercourse with the person with whom he or she is engaged. It does not matter whether the third party had the consent of the engaged person. It also does not matter whether the engaged person did not learn of the act of sexual intercourse until after he or she was married or whether the engaged person did not marry the other person as a result of the act of sexual intercourse.

The reason that an engaged person is not entitled to maintain an action against a third party for criminal conversation is that the engaged person is not entitled to damages for loss of his or her exclusive sexual relationship with another person or for the other person’s services or support until he or she is married to the other person.