Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P8 pps

exist, the registrar issues a certificate of title to the owner. This certificate is ordinarily conclu- sive as to the person’s rights in the property and cannot be challenged or overcome by a court of law. If a mistake is made by the examiner of titles, an insurance fund pays the person who holds a claim against the land. The fees charged to examine and register property pay for the insurance fund and the operation of the registration office. When the owner sells the property, the certificate alone is evidence of good title, eliminating the need for a new examination of title. The purchaser presents the deed and the certificate of title to the registrar, who records the purchaser’s name on the title. Property rules that apply to traditional systems of land conveyance may not apply to property under a Torrens title system. For instance, in Hebert v. City of Fifty Lakes (744 N. W.2d 226 [Minn. 2008]), a city in Minnesota argued that it had acquired a piece of private property through a DE FACTO taking. This type of taking occurs when an entity possessed with powers of EMINENT DOMAIN interferes with a property owner’s use, possession, or enjoyment of property. This type of taking is similar to taking of property through ADVERSE POSSESSION. The Minnesota Supreme Court reviewed the state’s Torrens statute and determined that the state could exercise the power of eminent domain but could not acquire the property through a de facto taking. The one drawback to a Torrens system is the initial cost of registering the property. The system is most effective when unimproved land is subdivided for the first time because it reduces the number of deed entries an examiner must review. FURTHER READINGS Burke, Barlow. 2006. Real Estate Transactions: Examples and Explanations. 4th ed. New York: Aspen. Lefcoe, George. 2003. Real Estate Transactions. 4th ed. Newark, N.J.: LexisNexis. CROSS REFERENCES Real Estate; Recording of Land Titles; Registration of Land Titles; Title Search. TORT LAW Tort law refers to a body of rights, obligations, and remedies that is applied by cour ts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury or suffers pecuni- ary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor. Three elements must be established in every tort action. First, the PLAINTIFF must establi sh that the DEFENDANT was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to conform his or her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant’s breach. The law of torts is derived from a combina- tion of common-law principles and legislative enactments. Unlike actions for breach of contract, tort actions are not depe ndent upon an agreement between the parties to a lawsuit. Unlike criminal prosecutions, which are brought by the government, tort actions are brought by private citizens. Remedies for tortious acts include money damages and injunctions (court orders compelling or forbid- ding particular conduct). Tortfeasors are subject to neither fine nor INCARCERATION in civil court. The word tort comes from the Latin term torquere, which means “twisted or wrong.” The English COMMON LAW recognized no separate legal action in tort. Instead, the British legal system afforded litigants two central avenues of redress: TRESPASS for direct injuries, and actions on the case for indirect injuries. Gradually, the common law recognized other civil actions, including DEFAMATION, LIBEL, and sland er. Most of the American colonies adopted the English common law in the eighteenth century. During the nineteenth century, the first U.S. legal treatises were published in which a portion of the common law was synthesized under the heading of torts. Through the twentie th century and into the 2000s, tort law has touched on nearly every aspect of life in the United States. In economic affairs, tort law provides remedies for businesses that are harmed by the unfair and deceptive trade practices of a competitor. In the work- place, tort law protects employees from the intentional or negligent infliction of emotional distress. Tort law also helps regulate the environment, providing remedies against both GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 58 TORT LAW individuals and businesses that pollute the air, land, and water to such an extent that it amounts to a NUISANCE. Sometimes tort law governs life’s most intimate relations, as when individuals are held liable for knowingly transmitting communica- ble diseases to their sexual partners. When a loved one is killed by a tortious act, surviving family members may bring a WRONGFUL DEATH action to recover pecuniary loss. Tort law also governs a wide array of behavior in less intimate settings, including the operation of motor vehicles on public roadways. The law of torts serves four objectives. First, it seeks to compensate victims for injuries suffered by the CULPABLE action or inaction of others. Second, it seeks to shift the cost of such injuries to the person or persons who are legally responsible for inflicting them. Third, it seeks to discourage injurious, careless, and risky behav- ior in the future. Fourth, it seeks to vindicate legal rights and interests that have been compromised, diminished, or emasculated. In theory these objectives are served when tort liability is imposed on tortfeasors for intentional wrongdoing, NEGLIGENCE, and extremely hazard- ous activities. Intentional Torts An intentional tort is any deliberate interference with a legally recognized interest, such as the rights to bodily integrity, emotional tranquility, dominion over property, seclusion from public scrutiny, and freedom from confinement or deception. These interests are violated by the intentional torts of ASSAULT, BATTERY, trespass, FALSE IMPRISONMENT, invasion of privacy, conver- sion, MISREPRESENTATION, and FRAUD. The intent element of these torts is satisfied when the TORTFEASOR acts with the desire to bring about harmful consequences and is substantially certain that such consequences will follow. Mere reckless behavior, sometimes called willful and wanton behavior, does not rise to the level of an intentional tort. Under certain circumstances the law per- mits individuals to intentionally pursue a course of conduct that will necessarily result in harm to others. The harm that results from such conduct is said to be outweighed by more important interests. Self-preservation is one such interest and is embodied in the right of SELF-DEFENSE. Indiv iduals may exert sufficient force in self-defense to repel an imminent threat of bodily harm. DEADLY FORCE may only be used by persons who reasonably believe that their lives are endangered and for whom there are no reasonable means of escape. REASONABLE FORCE, but not deadly force, may be employed in defense of property. Consent is a defense to virtu ally every intentional tort. The law will not compensate persons who knowin gly allow someone to injure them. However, consent must be given freely and voluntarily to be effective. Consent induced by coercion, duress, UNDUE INFLUENCE, or chicanery is not legally effective. Nor is consent legally effective when given by an incompetent person. Consent to intentional torts involving grievous bodily harm is also deemed ineffective in a number of jurisdictions. Negligence Most injuries that result from tortious behavior are the product of negligence, not intentional wrongdoing. Negligence is the term used by tort law to characterize behavior that creates unrea- sonable risks of harm to persons and property. A person acts negligently when his behavior departs from the conduct ordinarily expected of a reasonably prudent person under the circum- stances. In general, the law requires jurors to use their common sense and life experience in determining the proper degree of care and vigilance with which people must lead their lives to avoid imperiling the safety of others. Not every accident producing injury gives rise to liability for negligence. Some accidents cannot be avoided even with the exercise of reasonable care. An accid ent that results from a defendant’s sudden and unexpected physical ailment, such as a seizu re or a blackout, generally relieves the defendant of liability for harm caused during his period of unconscious- ness. However, defendants who have reason to know of such medical problems are expected to take reasonable precautions against the risks the problems create. In some jurisdictions unavoid- able accidents are called ACTS OF GOD. ASSUMPTION OF RISK is another defense to negligence actions. This defense prevents plain- tiffs from recovering for injuries sustained as a result of a relationship or transaction they entered with full knowledge and acceptance of the risks commonly associated with such undertakings. Assumed risks includ e most of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TORT LAW 59 those encountered by spectators attending sporting events. However, the law will not assume that individuals accept the risk of intentionally inflicted harm or damage, such as injuries resulting from ASSAULT AND BATTERY. Strict Liability In some cases tort law imposes liability on defendants who are neither negligent nor guilty of intentional wrongdoing. Known as STRICT LIABILITY , or liabili ty without fault, this bra nch of torts seeks to regulate those activities that are useful and necessary but that create abnormally dangerous risks to society. These activities include blasting, transpo rting hazardous mate- rials, storing dangerous substances, and keeping certain wild animals in captivity. A distinction is sometimes drawn between moral fault and legal fault. Persons who negligently or intentionally cause injury to others are often considered morally blamewor- thy for having failed to live up to a minimal threshold of human conduct. By contrast, legal fault is more an artificial standard of conduct that is created by government for the protection of society. Persons who engage in extremely hazardous activities may be morally blameless because no amount of care or diligence can make their activities safe for society. However, such persons will nonetheless be held legally responsible for harm that result s from their activities as a means of shifting the costs of injury from potential victims to tortfeasors. As a matter of social policy, then, individuals and entities that engage in abnormally dangerous activities for profit must be willing to ensure the safety of others as a price of doing business. Consumers who have been injured by defectively manufactured products also rely on strict liability. Under the doctrine of strict PRODUCT LIABILITY, a manufacturer must guaran- tee that its good s are suitable for their intended use when they are placed on the market for public consumption. The law of torts will hold manufacturers strictly liable for any injuries that result from placing unreasonably dangerous products into the stream of commerce, witho ut regard to the amount of care exercised in preparing the product for sale and distribution and without regard to whether the consumer purchased the product from, or entered into a contractual relationship with, the manufacturer. Causation Causation is an element common to all three branches of torts: strict liability, negligence, and intentional wrongs. Causation has two prongs. First, a tort must be the cause in fact of a particular injury, which means that a specific act must actually have resulted in injury to anothe r. In its simplest form, cause in fact is established by evidence that shows that a tortfeasor’s act or omission was a necessary antecedent to the plaintiff’s injury. Courts analyze this issue by determining whether the plaintiff’s injury would have occurred “but for” the defendant’s con- duct. If an injury would have occurred inde- pendent of the defendant’s conduct, cause in fact has not been established, and no tort has been committed. When multiple factors have led to a particular injury, the plaintiff must demonstrate that the tortfeasor’s action played a substantial role in causing the injury. Second, plaint iffs must establish that a particular tort was the PROXIMATE CAUSE of an injury before liability will be imposed. The term proximate cause is somewhat misleading because it has little to do with proximity or causation. Proximate cause limits the scope of liability to those injuries that bear some reasonable relationship to the risk created by the defendant. Proximate cause is evaluated in terms of foreseeability. If the defendant should have foreseen the tortious injury, he or she will be held liable for the resulting loss. If a given risk could not have been reasonably anticipated, proximate cause has not been established, and liability will not be imposed. When duty, breach, and proximate cause have been established in a tort action, the plaintiff may recover damages for the pecuniary losses sustained. The measure of damages is determined by the nature of the tort committed and the type of injury suffered. Damages for tortious acts generally fall into one of four categories: damages for injury to person, damages for injury to PERSONAL PROPERTY, damages for injury to real property, and PUNITIVE DAMAGES. Damages PERSONAL INJURY tort victims must normally recover all their damages—past, present, and future—during a single lawsuit. Damages may be recovered for physical, psychological, and emotional injury. Specifically, these injuries may GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 60 TORT LAW include permanent disability, pain and suffer- ing, disfigurement, humiliation, embarrass- ment, distress, impairment of earning capacity, lost wages or profits, medical costs, and out-of- pocket expenses. Courts typically rely on EXPERT TESTIMONY to translate such losses into dollar figures. Plaintiffs suffering damage to personal property must elect between two methods of recovery. First, plaintiffs may elect to recover the difference between the value of the property before the tort and the value of the property after it. Second, plaintiffs may elect to recover the reasonable costs of repair for damaged personal property. However, if the property is destroyed, irreparable, or economically infeasi- ble to repair, damages are measured by the replacement value of the property. Persons who are temporarily deprived of personalty may sue to recover the rental value of the property for the period of deprivation. Damages for injury to real property may be measured by the difference in the realty’svalue before and after the tort. Alternatively, plain- tiffs may elect to recover the reasonable costs of restoring the property to its original condition. In either case plaintiffs may also recover the rental value of their property if its use and e njoyment has been interrupted by tortious behavior. Mental, emotional, and physical harm that is sustained in the process of a tortious injury to real property is compensable as well. Punitive damages, called exemplary damages in some jurisdictions, are recoverable against tortfeasors whose injurious conduct is suffi- ciently egregious. Although punitive damages are typically awarded for injuries suffered from intentional torts, they can also be awarded against tortfeasors who act with reckless indif- ference to the safety of others. Because one purpose of punitive damages is to punish the defendant, plaintiffs may introduce evidence regarding a tortfeasor’s wealth to allow the jury to better assess the amount of damages neces- sary for punishment. Such evidence is normally deemed irrelevant or prejudicial in almost every other type of damage claim. In addition to damages for past tortious conduct, plaintiffs may seek injunctive relief to prevent future harm. Manufacturing plants that billow smoke that pollutes the air, companies that discharge chemicals that poison the water, and factories that store chemicals that migrate through the soil create risks of injury that are likely to recur over time. In tort law, operations that produce recurring injuries such as these are called nuisances. If the harmfulness of such operations outweighs their usefulness, plaintiffs may successfully obtain a court order enjoining or restraining them. Immunity Certain individuals and entities are granted IMMUNITY from both damage awards and assess- ments of liability in tort. Immunity is a defense to a lega l action where PUBLIC POLICY demands special protection for an entity or a class of persons participating in a particular field or activity. Historically, immunity from tort LITI- GATION has been granted to government units, public officials, charities, educational institu- tions, spouses, parents, and children. Government immunity, also known as SOVEREIGN IMMUNITY, insulates federal, state, and local governments from liability for torts that an employee commits within the scope of his or her official duties. Public policy, as reflected by legislation, common-law precedent, and popu- lar opinion, has required courts to protect the government from unnecessary disruptions that invariably result from civil litigation. Similarly, educational institutions generally have been immunized from tort actions to protect stu- dents and faculty from distraction. In a number of states, tortfeasors have been given immunity from liability if they are related to the victim as husband or wife, or parent or child. These states concluded that family harmony should not be traumatized by the adversarial nature of tort litigation. Charities and other philanthropic organizations have been given qualified immunity from tort liability as well. This immunity is based on the fear that donors would stop giving money to charities if the funds were used to pay tort claims. Since the 1970s, nearly every jurisdiction has curtailed tort immunity in some fashion. Several jurisdictions have abolished tort immu- nity for entire groups and entities. The movement to restrict tort immunity has been based in part on the RULE OF LAW, which requires all persons, organizations, and government officials to be treated equally under the law. Despite the efforts of this movement, tort GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TORT LAW 61 immunity persists in various forms at the federal, state, and local levels. Tort Reform Initiatives The damages recovered by those injured as a result of a tortious act of another are often paid for by insurance companies. This is particularly true in MEDICAL MALPRACTICE cases. Doctors must pay significant medical liability insurance pre- miums to stay in business. When a doctor commits MALPRACTICE, the patient may receive an award of hundreds of thousands of dollars to Breast Implant Lawsuits W B hen a company produces a dangerous or defective product that injures an individual, the injured person may sue the company in a products-liability tort action, demanding compensa- tion for the injuries. To prevail in a products-liability action, the plaintiff must demonstrate that the injury-causing product was defective, that the defect existed at the time the produ ct left the control of the defendant, and that such defect was the proximate cause o f the plaintiff’s injury. If many individuals have been injured by the same product, the court may permit the filing of a class action lawsuit, in which a small number of plaintiffs represent the entire group of injured victims. One of the more controversial class actions involved the silicone breast-implant litigation. Notwith- standing a class totaling more than 400,000 plaintiffs, a settlement that offered more than $3 billion in compensation for their alleged injuries, and a federal government ban on the product, no evidence was ever provided that conclusively linked silicone breast implants with any form of serious disease. In fact, following the settlement at least two scientific studies affirmatively concluded that no such link exists. In the wake of those studies, manufacturers have sought government approval to resume selling silicone breast implants to the public. In 1962 Dow Corn ing became the first company to manufacture and market silicone breast implants. The implants consisted of a rubbery silicone envelope containing silicone gel. Plastic surgeons soon discovered that a certain (and as yet undetermined) percen tage of implants rupture on their own, either because of trauma to the breast or because the i mplant simply tears. In many cases, the gel stays either in the implants or in the immediate vicinity. In rare cases, the gel may migrate through the body. Moreover, the implants themselves are permeable, and minute amounts of silicone gel can seep th rough the implants and remain in nearby tissue or migra te throughout the body. For many years, breast implants were essen- tially unregulated by the government. The Food and Drug Administration (FDA) did not have jurisdiction over medical devices, including breast implants, until t he 1976 Medical Devices Amendment to the Food, Drug and Cosmetic Act (MDA) became law. The MDA “grandfathered-in” existing devices, such as breast implants, allowing them to remain on the market until the FDA could classify and regulate them. In 1982 the FDA proposed classifying sili cone- gel breast implants as Class III devices, the most stringently regulated category. The FDA expressed concern about the scar tissue t hat forms around the implant, about potential long-term toxic effects of silicone that might leak from the implants, and about possible health effects fro m the silicone polymers from which the implant shells were made. That same year Maria Stern filed the first silicone-breast-implant-related product liability suit against Dow Corning, Inc., after her implants ruptured. Testifying before a jury sitting in the U.S. District Court for the Northern District of California, Stern said that she suffered from chronic fatigue and joint pains before and after the implants were removed. Although her doctors speculated that Stern’s problems had been caused by the silicone migrating throughout her body, they offered no valid scientific proof of causation. However, Stern did demonstrate that the company had acted irrespon- sibly by failing to conduct any research into the possible ill effects of silicone on the human body despiteevidencethatDowCorningknewthat implants could leak and rupture. A jury found for the plaintiff and awarded Stern $200,000 in damages. The jury also awarded her $1.2 million in punitive damages. After the trial judge upheld the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 62 TORT LAW millions of dollars. As insurance companies continue to pay these hefty awards, the rates for insurance premiums often rise sharply. The medical profession and medical liability insurance companies have engaged in a nation- wide campaign to place limitations on the amount of damages that a patient who has been subject to medical malpractice can recover. Under the guise of “tort reform,” supporters advocate placing limitations on the recovery of noneconomic damages, including pain and suffering and loss of consortium. In 1975 awards, the case was settled before appeal for an undisclosed sum, and the record was sealed. The media did not immediately pick up on the Stern settlement or the smattering of similar lawsuits that were pending in state and federa l courts around the country. After several relatively uneventful years following a series FDA hearings in the late 1980s, however, NBC aired an episode of Face to Face with Connie Chung which focused on the dangers of breast implants. The December 1990 show frightened and outraged thousands of implant recipients. Chung referred to silicone gel as “an ooze of slimy gelatin that could be poisoning women.” She interviewed several women who blamed implants for causing their auto-immune diseases, but Chung never questioned the p re- sumed link. Chung concluded the segment by showing viewers pictures of Sybil Goldrich, whose chest had been disfigured by operations to remove her implants. B On July 9, 1991, a deadline expired for implant manufacturers to prove the safety of their product to the FDA, and no manufacturer offered any convincing proof on the ma tter. A year later the FDA ordered that silicone breast implants be removed from the market. Thereafter, the number of breast-implant lawsuits filed against manufac- turers rose dramatically. By 1992 plaintiffs had filed 3,558 individual lawsuits against Dow Corning alone. In June 1992 the federal Judicial Panel on Multidistrict Litigation certified a multi-district class- action lawsuit against the major implant manufac- turers, including Dow Corning, Bristol-Myers Squibb, Baxter International, and Minnesota Mining & Manu- facturing Co. In September 1993 the parties tentatively agreed to settle the class-action produc ts liability lawsuit for $4.75 billion. But settlement ultimately collapsed after 440,000 women registered f or the settlement, forcing Dow Corning, the largest c ontributor to the settlement, to file for bankruptcy in 1995. On November 30, 1998, U.S. Bankruptcy Judge Arthur Spector approved Dow Corning’s $4.5 billion plan to emerge from bankruptcy, which included $3.2 billion to settle implant claims with more than 170,000 women. Eventually, the other implant manufacturers entered similar settlement agreements with most of the remaining plaintiffs. More than 90 percent of the eligible class-action plaintif fs accepted the defen- dants’ settlement offers. The remaining plaintiffs opted out of the class settlement, which allowed them to sue the defendants i ndividually. A little more than a year after the class action was settled, a scientific panel appointed by the court overseeing the settlement released the results of its breast-implant study, finding that there was no sufficient scientific basis to link silicone i mplants to cancer, connective tissue diseases, immune system dysfunctions, or any other disease. On June 21, 1999, the Institute of Medicine of the National Academy of Sciences issued a congressionally funded rep ort that reached the s ame conclusion. In March of 2003 two California-based compa- nies announced their desire to re-introduce silicone breast implants into the stream of commerce, and the FDA agreed to hold safety hearings and reconsider its ban on the product. The potential return of silicone gel-filled implants came at a time when more women were looking to increase their breast size: the American Society of Plastic Surgeons reported more than 206,300 breast aug- mentations in 2001, up from about 32,600 in 1992. FURTHER READINGS Angell, Marcia. 1997. Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case. New York: W. W. Norton. Crane, Misti. 2003. “FDA Might Reconsider 10-Year Silicone Ban.” Columbus Dispatch (March 16). Stewart, Mary White. 1998. Silicone Spills: Breast Implants on Trial. Westport, Conn.: Praeger. CROSS REFERENCE Class Action. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TORT LAW 63 California enacted the Medical Injury Compen- sation Reform Act, which limits recovery of noneconomic damages at $250,000 and restricts the amount of fees that may be recovered by lawyers. According to the American Tort Reform Association, the m ajority of states since 1986 have approved some form of tort reform. One common type of tort reform involves placing limitations on the amount of punitive damages that an individual plaintiff can receive from a tort action. Other tort reform efforts focus on modifications to JOINT AND SEVERAL LIABILITY. The reason for the latter effort is to prevent plaintiffs from joining a defendant that may have to pay an e ntire judgment even though the defendant was only responsible for a relatively small proportion of the plaintiff’s damages. During the early 2000s, President GEORGE W. BUSH advocated federal legislation that would have placed a $250,000 cap on noneconomic damages at the national level. Though Bush’s effort failed, his proposal led a small number of states, including Texas and Mississippi, to adopt the $250,000 limit. Though supporters consider legislation passed in these states to be victories for tort reform, opponents of tort reform have remained skeptical. These opponents claim that many of the problems associated with insurance costs are the result of poor business practices by insurance companies. Opponents also maintain that capping damages for pain and suf fering restricts the ability of patients to recover to only an ARBITRARY amount from a negligent doctor. Supporters of the initiative claim that capping damages will lower medical costs to the general population. Tort reform was still a significant issue when President BARACK OBAMA took office in 2009. As Obama focused on health care reform during the first several months of his presi- dency, tort reform supporters argued that the president should also consider advocating for tort reform to bring down health care costs. Commentators have noted, though, that Obama has not taken a clear stance on the issue of tort reform. FURTHER READINGS Best, Arthur, and David W. Barnes. 2003. Basic Tort Law: Cases, Statutes, and Problems. New York: Aspen. Calnan, Alan. 2003. A Revisionist History of Tort Law. Durham, N.C.: Carolina Academic Press. Davies, Julie A., and Paul T. Hayden. 2008. Global Issues in Tort Law. St. Paul, Minn.: Thomson/West. Loiacono, Kristin. 2003. “A Good Fight in the House over Medical Malpractice ‘Reform’.” Trial 11. Shapo, Marshall S. 2003. Principles of Tort Law. 2d ed. St. Paul, Minn.: West. Vetri, Dominick. 2006. Tort Law and Practice. 3d ed. Newark, N.J.: LexisNexis. CROSS REFERENCES “But For” Rule; Consumer Protection; Damages; Environ- mental Law; Federal Tort Claims Act; Feres Doctrine; MacPherson v. Buick Motor Co; Product Liability; Remedy; Rylands v. Fletcher. TORTFEASOR A wrongdoer; an individual who commits a wrongful act that injures another and for which the law provides a legal right to seek relief; a defendant in a civil tort action. CROSS REFERENCE Tort Law. TORTIOUS Wrongful; conduct of such character as to subject the actor to civil liability under TORT LAW. In order to establish that a particular act was tortious, a plaintiff must prove that an action- able wrong existed and that damages ensued from that wrong. CROSS REFERENCE Tort Law. TOTTEN TRUST An arrangement created by a person depositing his or her own money in his or her own name in a bank account for the benefit of another. A Totten trust is a tentative trust, revocable at will, until the depositor dies or completes the gift in his or her lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary. If the depositor dies before the beneficiary without revocation or some resolute act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. The beneficiary need not know about the arrangement, and the depo sitor is entitled to deposit and withdraw funds from the account as he or she deems fit. The depositor can even close out or revoke the account without obtaining the beneficiary ’s permission. When GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 64 TORTFEASOR the depositor dies, any funds in the account automatically become the property of the beneficiary, but they might be subject to the claims of the decedent’s creditors. Totten trusts are usually established to avoid the inconve- nience of making a will and the expense and delay of probate and administration. Such an arrangement is known as a testamentary substitute, since a will is thereby obviated. Frequently such trusts are established because the depositor wants to concea l his or her financial situation from others. v TOUCEY, ISAAC Isaac Toucey served as U.S. attorney general from 1848 to 1849. A leading Connecticut politician before his appointment by President JAMES POLK, Toucey went on to serve as secretary of the navy in the administration of JAMES BUCHANAN . Isaac Toucey was born on November 5, 1796, in Newtown, Massachusetts. He studied law as a young man and was admitted to the Connecticut bar in 1818. After practicing law in Hartford, Connecticut, for several years, he was Totten Trust I, _____________________________________________________________________ [name of depositor], hereby establish with _____________________________________ [name of bank] a savings account under Savings Account Number ___________________. I agree to be bound by the articles of incorporation, bylaws, and regulations of the bank in existence on the date of this instrument or made or amended subsequent to the execution of this instrument, regardless of whether notice of new or amended articles of incorporation, bylaws, or regulations are given to me. All deposits made by me at any time are for the benefit of _____________________________________________[name of beneficiary] of ______________________________________________________________________________________ [residence of beneficiary]. Upon my death, I agree that the entire balance in the savings account shall be distributed to the following beneficiary who survives the depositor: [List name and address of the beneficiary] ______________________________________________________________________________________________________________ I reserve the right to make additional deposits to the account, and to withdraw all or any part of the account at any time, subject only to the bylaws and regulations of the bank. I reserve the right to amend or revoke this agreement at any time and to change the beneficiary or beneficiaries of the savings account at any time without the consent of the beneficiary or any other person. During my lifetime, the interest in this savings account shall not be assignable or anticipated in any way by the beneficiary. The interest in this savings account shall not be subject in any way to the claims of the beneficiary's creditors. DATED: ____________________________________________, 20______ ___________________________________________________________ [Signature of Depositor] A sample Totten trust. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. ▼▼ ▼▼ Isaac Toucey 1796–1869 17751775 18251825 18501850 18751875 18001800 ❖ 1796 Born, Newtown, Mass. 1775–83 American Revolution 1812–14 War of 1812 ◆ 1818 Admitted to Conn. bar; began law practice in Hartford 1822–35 Served as Connecticut's state's attorney 1935–39 Served in U.S. House ◆ 1842 Reappointed state's attorney 1846–48 Served as governor of Connecticut ◆ 1848–49 Served as U.S. attorney general under Polk 1850 Elected to Conn. state Senate 1852–57 Served in U.S. Senate 1861–65 U.S. Civil War ❖ 1869 Died, Hartford, Conn. 1857–61 Served as secretary of the Navy under Buchanan GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TOUCEY, ISAAC 65 appointed state’s attorney in 1822, and held that office until 1835. In 1835 Toucey was elected to the U.S. House of Representatives as a member of the DEMOCRATIC PARTY. He left Congress in 1839 and returned to Connecticut. Alhough he was reappointed state’s attorney in 1842, his politi- cal ambitions remained paramount. He became governor of Connecticut in 1846. President Polk took office in 1845. His first attorney general was JOHN Y. MASON,wholeft the position after a year to become secretary of the navy. Mason’s successor, NATHAN CLIFFORD, remained until 1848, when Polk sent him to Mexico to negotiate the treaty that ended the Mexican War and ceded California to the United States. In June 1848, with less than a year left in his administration, Polk appointed Toucey to be attorney general. Toucey’sbrieftenure,which ended in March 1849, was unremarkable. Nevertheless, Toucey capitalized on the national stature he attained as attorney general. He was elected a Connecticut state senator in 1850 and a U.S. senator in 1852. In March 1857 Toucey resigned from the Senate to become secretary of the navy for President Buchanan. He remained as secretary for the entire pre- sidential term, which ended in March 1861. After retiring from politics and government service, Toucey returned to Connecticut and resumed the practice of law. He died on July 30, 1869, in Hartford. FURTHER READINGS “Isaac Toucey.” 2009. Amazines. Available online at http:// www.amazines.com/Isaac_Toucey_related.html; website home page: http://www.amazines.com (accessed Sep- tember 7, 2009). “Isaac Toucey.” Connecticut State Library. Available online at http://www.cslib.org/gov/touceyi.htm; website home page: http://www.cslib.org (accessed August 27, 2009). Justice Department. 1985. Attorneys General of the United States, 1789–1985. Washington, D.C.: Government Printing Office. Available online at http://www.usdoj. gov/ag/attygeneraldate.html; website home page: http:// www.usdoj.gov (accessed July 8, 2009). TOWAGE SERVICE An act by which one vessel, known as the “tug,” supplies power in order to draw another vessel, called the “tow,” generally because the tow lacks power to propel itself accordingly. Towage involves dragging a vessel forward in the water through the use of a rope or cable attached to another vessel. Various state laws require that bright lights be placed upon vessels that are towing or being towed. In the United States, towage contracts are governed by the general maritime law, and tort law applies to towage activity as well (e.g., cases in which a tug damages its tow). Stevens v. The White City, 285 U.S. 195 52 S.Ct. 347. 76 L.Ed. 699. (1932). FURTHER READING Force, Robert. 2004 Admiralty and Maritime Law. Federal Judicial Center. TOWN A town is a civil and political subdivision of a state, which varies in size and significance accord- ing to location but is ordinarily a division of a county. A town, which is a type of MUNICIPAL CORPORATION , can be formed by a state legisla- ture when a large number of dwellings have concentrated in a particular location. A town is a creation of the state, designed and authorized to perform certain governmental functions on the local level. Its main purpose is to exercise the power of the state to promote greater prosperity, safety, convenience, health, and the common good of the general community. The terms township and town are frequently used interchangeably in certain geographic locations, although in some parts of the United States the term township denotes a group of several towns. Because towns can be formed only from contiguous territory, tracts of land that are entirely separate cannot be included in a town. Subject to constitutional restrictions, ordinarily, the state legislature has full power to create, enlarge, diminish, consolidate, and otherwise alter the boundaries of towns without the consent of those affected. Powers In general, towns have only the powers conferred upon them by the state legislature. However, the capacity of a town to acquire and hold real property has long been recognized under English COMMON LAW. Towns are, there- fore, generally given the power to construct their own public buildings and usually have the power to lease their property. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 66 TOWAGE SERVICE Towns are ordinarily granted the power to enact ordinances concerning local matters, provided the ordinances are reasonable and protect the GENERAL WELFARE of the public to an appreciable degree. For example, a town might enact ZONING ordinances to restrict the use of land in certain designated areas to safeguard the public health and safety. Towns approve ordinances through several different means, including a vote of a town council or commis- sion, a board of commissioners, or by popular vote of eligible citizens. Ordinances enacted by a town are subject to JUDICIAL REVIEW, especially concern ing their reasonableness. Meetings Town meetings or boards are the primary vehicles by which a town governs itself since in many states a town exercises its powers by vote of a town meeting or a town council. Town meetings serve both legislative and executive functions; qualified residents meet to discuss and vote, if necessary, on matters dealing w ith their self-government. In most states, a person who pays town taxes is eligible to vote at the town meeting. State statutes regulate all kinds of town meetings as well as the business to be transacted and the conduct that is acceptable. Boards or Councils Town boards or councils are created by the legislative power of the state for the supervision of town affairs. All of their duties are either legislative or administrative in character. Their powers include selecting police officers and town attorneys, effecting public improvements, and providing for the audit and payment of claims against the town. The selectmen of a town are officers elected by the towns to the boards to execute general business and to exercise various executive powers. Generally a board can function only when a majority of selectmen are present at a meeting. A selectman is ineligible to vote on propositions in which he or she has a financial interest in cases where his or her vote may be decisive. Town boards speak by their records, which are maintained by the town clerk in a record book. In general, other duties of the town clerk include the issuance of calls for town meetings and the performance of the general secretarial duties. Taxation A town is permitted to raise revenue through taxation only if the state legislature has granted it the power to do so. Township boards or the electors at a town meeting can decide the amount of taxes needed for township purposes, or the normal operating expenses of the town, such as for maintenance of the highways. A small part of the tax may be set aside for miscellaneous or emergency expenses. In addi- tion, a town may properly impose taxes for special purposes, such as the erection of a town hall. All property not lega lly exempt within the limits of a town or a township is subject to assessment and taxation by it. Upon the levy of a town tax, inhabitants must pay the tax to the appropriate officer, ordinarily the town tax collector. Failure to do so, or failure to pay taxes on property correctly assessed, entitles the tow n to a LIEN on the property, which means that the property cannot be sold until the taxes have been paid. After a number of years prescribed by statute, the town can have the taxpayer’s property sold at a TAX SALE to pay the overdue taxes plus any accrued interests and costs. Any excess fun ds are given to the taxpayer. Taxpayer’s Suit Because every taxpayer of a town has a vital interest in, and a right to, the preservation of an orderly and lawful government, a numb er of statutes give the individual taxpayer the right to bring an action against officers, boards, or commissions of a town to recover money that has been wrongfully spent. This type of legal action is commonly known as a TAXPAYER’S SUIT. Claims To protect their funds, towns or townships generally establish a regular and orderly proce- dure for the allowance and payment of claims against them, which must be followed before any claim will be satisfied. The courts may review the decision of boards permitting or disallowing claims against towns or townships. Claims against the town may be settled or submitted to ARBITRATION at the direction of town supervisors or following a vote at a town meeting. FURTHER READINGS McCarthy, David J. 2003. Local Government Law in a Nutshell. 5th ed. St. Paul, Minn.: Thomson West. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TOWN 67 . the RULE OF LAW, which requires all persons, organizations, and government officials to be treated equally under the law. Despite the efforts of this movement, tort GALE ENCYCLOPEDIA OF AMERICAN LAW, . knowledge and acceptance of the risks commonly associated with such undertakings. Assumed risks includ e most of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TORT LAW 59 those encountered. negligent infliction of emotional distress. Tort law also helps regulate the environment, providing remedies against both GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 58 TORT LAW individuals and