Basics of Tort Law

Basis of Torts Law

• A tort cause of action is a legal claim, but is not a contract claim.
• It is brought by a plaintiff against a defendant alleging that the defendant's wrongful conduct has caused harm or injury to the plaintiff.
• The plaintiff seeks compensation or other relief.
• "Tort" is a legal term that includes a wide range of civil wrongs that result in harm or injury to another person or their property.

Elements of Each Tort

• Every tort cause of action has specific elements that the plaintiff must prove to establish liability.
• These elements vary depending on the type of tort alleged.

Burden of Proof

• The burden is on the plaintiff to demonstrate, by a preponderance of the evidence, that all required elements of the tort have been met.
• If the plaintiff successfully proves all elements, the defendant may be held liable for the harm caused.

Importance of Damages

• In addition to proving the elements of the tort, the plaintiff must demonstrate the damages suffered as a direct result of the defendant's actions.
• Damages may include physical injuries, emotional distress, property damage, or financial losses.

Damages Available in Tort Actions

• Compensatory damages reimburse a plaintiff for their actual losses.
• Special damages refer to quantifiable losses, such as medical expenses, lost wages, and benefits.
• General damages may also be awarded for nonmonetary aspects, such as pain, suffering, and reputation.
• Punitive damages may be awarded to punish the wrongdoer and to deter others from similar conduct in the future.

Damages

• Special damages include medical bills, lost wages, damage to property, and repair costs.
• General damages include physical and/or mental pain and suffering, loss of consortium, disfigurement, and loss of reputation.

Classification of Torts

• Intentional torts include torts against both a person and/or a tort against property.
• Intentional torts are fault plus intent.
• Unintentional torts also include torts against both a person and/or a tort against property.
• Unintentional torts are fault without intent to harm.

Defenses to Torts

• The defendant may be able to raise one or more legally recognized defenses.
• A successful defense releases the defendant from partial or full liability for the tortious act.
• Available defenses vary depending on the tort involved.
• Think of a defense as a "trump” card.

Intentional Torts

• For an intentional tort to occur, the tortfeasor (the person committing the tort) must possess the necessary intent.
• Intent can be established in different ways.

Direct Intent

• The tortfeasor intended the specific consequences of their actions.
• The tortfeasor acted with the purpose of causing harm or producing a certain outcome.

Substantial Certainty

• Even if the tortfeasor did not desire the specific outcome, they knew with substantial certainty that certain consequences would result from their actions.

Transferred Intent

• In transferred intent, the situation is where the tortfeasor intends to harm one person, but unintentionally harms another person instead of or as well.

Assault

• Assault is any intentional and unexcused threat of immediate harmful or offensive contact, whether words or acts, that creates a reasonably believable threat.
• No physical contact is necessary for an assault to occur.

Battery

• Battery is the completion of an assault.

• It is the unexcused and harmful or offensive physical contact intentionally performed.

• The contact can be made by the defendant or by some force set in motion by the defendant.

• The contact can be either harmful or offensive.

• Whether the contact is offensive will be determined by both a subjective standard and an objective standard.

• Is it in fact offensive to the plaintiff (subjective) and would it be offensive to a reasonable person (objective).

Some Defenses to Assault and Battery

• Consent: If the plaintiff consented to the act that led to the assault, this can be a valid defense.
• Self-Defense: If the defendant can prove that they were acting in self-defense and used reasonable force to protect themselves from imminent harm, this can be a defense to a civil assault claim.

False Imprisonment

• False imprisonment is the intentional confinement of another person or restraint of another person's activities without justification.
• The confinement may occur by physical barriers, physical restraint, or threats of physical force.
• Moral pressure is generally not enough.

False Imprisonment Examples

• An individual blocks all exits of a room, preventing another person from leaving during an argument.

• Even if no physical force is used, the act of preventing the person from leaving can constitute false imprisonment.

• A police officer arrests and detains a person without probable cause or a warrant.

• If the arrest is made without legal justification, it can be classified as false imprisonment

• Most states allow a shopkeeper to detain a suspected shoplifter from leaving the store.

• These are called "Privilege To Detain" laws.

• In other words, without the state law, the shopkeeper detaining the suspected shoplifter might be liable for false imprisonment: it is a defense!

• In most states, a shopkeeper may avoid liability for false imprisonment if:

1. They have a reasonable suspicion that shoplifting actually occurred;
2. They use only reasonable force to detain the shoplifter; and
3. They detain the suspected shoplifter only for a reasonable time (generally, until the police arrive).

Infliction of Emotional Distress

• Infliction of emotional distress is an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.
• The act must be extreme and so outrageous that it exceeds the bounds of decency accepted by society in order to be actionable.

Elements of Infliction of Emotional Distress Cause of Action:

1. Defendant must have acted intentionally;
2. Defendant's conduct must be extreme and outrageous;
3. The conduct must be the cause of the emotional distress; and
4. The emotional distress must be severe.

Defamation

• Defamation involves wrongfully hurting another person's good reputation.
• Duty in law to refrain from making false defamatory statements of fact about others.
• Orally breaching this duty is slander.
• Breaching it in print or media (including the Internet) is called libel.

To Establish Defamation

1. The defendant made a false statement of fact (not opinion);
2. The statement was understood as being about the plaintiff and tended to harm the plaintiff's reputation;
3. The statement was published to at least one person other than the plaintiff; and
4. If the plaintiff is a public figure, they must also prove actual malice.

• The published statement must be of fact.
• Statements of opinions are protected speech under the First Amendment and not actionable.

Publication Requirement

• The false statement must hold an individual up to hatred, contempt, or ridicule in the community and be “publicized" (communicated) to a third party.

Damages for Libel

• General damages are presumed, and the plaintiff does not have to prove actual injury.
• These damages may include compensation for disgrace, dishonor, humiliation, injury to reputation, and emotional distress.

Damages for Slander

• Unlike libel, the plaintiff must prove special damages (actual economic loss) to establish liability.
• If the plaintiff cannot prove that the slanderous statement caused him to suffer actual economic or monetary losses, then the plaintiff cannot go forward and recover general damages.

Exception for Slander

• In an exception, a plaintiff who is the victim of slander per se does not have to prove special damages (actual economic loss) to establish liability.

Four types of slander per se

1. Statement that plaintiff has a loathsome disease (usually a sexually-transmitted disease)
2. Statement that plaintiff committed business improprieties.
3. Statement that plaintiff committed or has been imprisoned for a serious crime.
4. Statement that plaintiff has been unchaste or has engaged in serious sexual misconduct.

Defenses to Defamation

• Truth is generally an absolute defense for defamation.

• Privileged (or Immune) Speech may be an option for defence.

• Absolute Privilege is one defence.

• Qualified Privilege.

• A business can also be defamed.

• Defamation can arise when a false statement of fact is made about a person's product, business, or legal ownership rights to property.

• Defamatory statements that disparage a company's goods or services are called trade libel.

• Trade libel protects property rights, not reputations.

Invasion of Privacy

• The common law recognizes four acts that qualify as improperly infringing upon another's right to privacy:
  1. Intrusion on individual's affairs or seclusion;
  2. Publication of information that places a person in false light;
  3. Public disclosure of private facts; and
  4. Appropriation: Use of another's name, likeness, or other identifying characteristic for commercial purposes without the owner's consent.

Intrusion Upon Seclusion

This type of invasion of privacy occurs when someone intentionally intrudes upon the solitude or seclusion of another, in a manner that would be highly offensive to a reasonable person.

• Hidden cameras: Installing hidden cameras in someone's home or private space without their consent to capture private moments.
• Eavesdropping: Listening to private conversations through wiretapping or using other surveillance methods without the person's knowledge.

False Light Invasion of Privacy

• False light invasion of privacy occurs when someone publishes information about another person that is misleading and portrays them in a false light, which would be highly offensive to a reasonable person. e.g For example, publishing a photograph of a person in an article about terrorism that implies the person is a terrorist.

Appropriation of Name or Likeness

• This type of invasion of privacy involves using another person's name, likeness, or identity for commercial gain without their permission.
• Unauthorized Endorsements: Using a celebrity's image or name in advertising without their consent to promote a product.
• Impersonation: Creating a fake social media account using someone's identity to gain followers.

Fraudulent Misrepresentation

• Fraud is intentionally making misrepresentations of fact ("intentional deceit") usually for personal gain.
• Fraud is more than just puffery ("seller's talk").

Elements of Fraudulent Misrepresentation:

• Misrepresentation of material fact;
• Intent to induce another to rely on the misrepresentation;
• Justifiable reliance by innocent party;
• Damages suffered as a result of reliance;
• A causal connection between misrepresentation and the injury suffered.

Abusive or Frivolous Litigation

• Torts related to abusive or frivolous litigation include:
  • Malicious prosecution.
  • Abuse of process.
• While the two claims may appear similar, they have some essential differences.

Malicious Prosecution

• Malicious prosecution occurs when a defendant "maliciously" prosecutes a criminal case or uses a civil proceeding against the plaintiff when the defendant knows they don't have a case.
• The plaintiff must show that the original case was without legal grounds and was done with malice.
• The plaintiff must have obtained a favorable result in the previous case before they can sue for malicious prosecution.

Abuse of Process

• Abuse of process occurs when a defendant starts a legal process with the intention to obtain results for which the process was not designed.
• Example: filing a lien on someone else's property when there is not right to do so.

Wrongful Interference with a Contractual Relationship

occurs when:

• Defendant knows about contract between two or more parties;
• Defendant intentionally induces one of the parties to breach the contract; and
• Defendant benefits from such breach.

Wrongful Interference with a Business Relationship

is different and occurs when:

• There is an established business relationship between two or more parties;
• The defendant uses predatory methods to cause that relationship to end; and
• The plaintiff (a party to the original business relationship) suffers damages.

Intentional Torts Against Property

Trespass to Land

• Trespass to Land occurs when a person, without permission:

  • Physically enters onto, above, or below the surface of another's land; or
  • Causes anything to enter onto the land; or
  • Remains-or permits anything to remain-on the land.

• A trespasser is generally liable for any damage his trespass caused to the property.

• A trespasser generally cannot hold the owner of the property liable for injuries the trespasser sustained while unlawfully on the premises.

• This is not an absolute rule.

• Most states require a landowner to exercise a reasonable duty of care rule even for trespassers that varies depending on the status of the trespasser.

• Property owners may be liable for objects that attract children under the attractive nuisance doctrine.

• A licensee is a person who is granted permission by the property owner to enter and use the property for specific purposes.

• A licensee can become a trespasser if they stay on the property after their permission has been revoked (told to leave) or the duration of their license has expired (the game is over).

• A licensee can also be liable for trespass if they enter areas of the property that are clearly marked as restricted or off-limits.

Trespass to Personal Property

• Trespass to Personal Property is the intentional interference with another's use or enjoyment of personal property without consent or privilege.
• This may include:
• Conversion.
• Failure to return property.

Negligence

• Negligence is not an intentional tort.
• It may be possible to recover damages for an injury under a negligence cause of action.

Unintentional Tort

• A wrongful act the tortfeasor committed without knowing its wrongfulness or without intending to commit the act (fault with no intent).
• Negligence: Failure to live up to a required duty of care that a reasonable person would exercise in similar circumstances.
• Intent is not required, only the creation of risk of the consequences experienced by the plaintiff.

The plaintiff must prove each of the following elements:

• Duty: Defendant owed plaintiff a duty of care;
• Breach: Defendant breached that duty;
• Causation: Defendant's breach caused the injury; and
• Damages: Plaintiff suffered a legal injury.

1stand 2nd Elements of Negligence

• The courts consider the following factors when determining whether a duty of care was breached:

• The nature of the act (outrageous or commonplace).

• The manner in which the act was performed.

• The nature of the injury.

• Reasonable Person Standard: In determining whether a duty of care has been breached, courts ask how a "reasonable person" would have acted in the same circumstances.

• Degree of care varies and depends on the defendant's occupation or profession, their relationship with the plaintiff, and other factors.

• A landowner may owe a duty of care to those who come on its premises, even to a trespasser.

• Businesses must warn invitees onto its property of any potential harm on its premises.

• An automobile driver must exercise reasonable care, which includes obeying traffic signals, driving at safe speeds, and staying alert to prevent accidents.

• Medical professionals owe a duty of care to their patients to provide competent and standard medical treatment, including diagnosing conditions correctly and providing appropriate treatment.

• At least in theory, risks considered to be obvious risks do not require a warning.

3rd Element of Negligence

• Causation: - Even though a tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the plaintiff's injuries.

• Courts need to ask : Is there a causation in fact? Was the act the proximate (or legal) cause of the injury?

• Causation in Fact: Did the injury occur because of the defendant's act, or would the injury have occurred anyway?

  • Usually determined by the “but for” test.

• Proximate Cause: When the causal connection between the act and injury is strong enough to impose liability.

• Foreseeability:

  • Defendant owes duty to protect plaintiff from foreseeable risks that defendant knew or should have known about.
  • A foreseeable risk is one in which the reasonable person would anticipate and guard against it

• The issue of foreseeability should not be confused with egg-shell skull theory.

• If an injury is foreseeable but one could not predict the extent of injury, the law says you take your plaintiffs as you find them.

4th Element of Negligence

• The Injury Requirement and Damages:
  • To recover, the plaintiff must show a legally recognizable injury.
  • Compensatory damages are designed to reimburse plaintiff for actual losses.
  • Punitive damages for gross negligence are designed to punish the tortfeasor and deter others from wrongdoing.

Negligence Statutes

• Negligence per se is a legal doctrine that establishes an act as negligent because it violates a statute or regulation.
• Under this doctrine, the act of violating the statute is considered inherently negligent, without the need for further proof of the defendant's breach of duty of care.
• This simplifies the plaintiff's case.

Examples of Negligence Per Se

• A driver runs a red light, violating traffic laws, and collides with another vehicle, causing injury to the other driver.

• A landlord fails to install smoke detectors in an apartment building, in violation of local fire safety regulations. A fire breaks out, and a tenant is injured because there was no warning.

• Dram shop laws are statutes that impose liability on establishments that sell alcoholic beverages to intoxicated individuals who subsequently cause harm due to intoxication.

• These laws aim to encourage responsible alcohol service by these establishments, holding them accountable for the actions of their patrons if they serve alcohol irresponsibly.

• All states have enacted some version of a "Good Samaritan" statute.

• This is a law designed to protect individuals who assist others in need from liability if unintended consequences result from their aid.

• The primary goal of this statute is to encourage people to offer help during emergencies without fear of being sued if their assistance inadvertently causes harm.

Defenses to Negligence Claims

• Assumption of the risk is a legal doctrine used as a defense in negligence cases.

• It occurs when a plaintiff voluntarily and knowingly assumes the inherent risks associated with a particular activity, thus absolving the defendant of some or all liability.

• This defense is based on the principle that a person who knowingly exposes themselves to a danger cannot later claim to be injured by that danger.

• Under the doctrine of strict contributory negligence, if a plaintiff was found to be even slightly negligent and contributed to their own injury, he was barred from recovering any damages from the defendant.

Pure Comparative Negligence

• Under pure comparative negligence, a plaintiff can recover damages even if they are found to be up to 99% at fault for his own injury.
• However, the damages awarded are reduced by the plaintiff's percentage of fault.
• If a pedestrian is found to be 70% at fault for jaywalking and the driver is found to be 30% at fault for speeding, and the pedestrian's damages are $10,000, the pedestrian can still recover $3,000 (30% of $10,000) from the driver.

Modified Comparative Negligence

• Modified comparative negligence says that a plaintiff can recover damages only if they are found to be less than 50% at fault or not.

• If the plaintiff is found to be equally or more at fault than the defendant, then they are barred from recovering any damages.

• If the plaintiff is found to be less at fault than the defendant, the damages awarded are reduced by the plaintiff's percentage of fault.

• If the pedestrian in our previous example is found to be 50% at fault for jaywalking and the driver is 50% at fault for speeding, the pedestrian cannot recover any damages.

• If the pedestrian is found to be 49% at fault, they can recover 51% of their damages.