Torts: Intentional & Unintentional

Nature of Torts

• Tort: a social or civil wrong that gives one the right to sue and seek remedies
  • A tort is committed when one person causes injury, harming their person, property, or reputation
• Crime: harmful conduct that poses a threat to society
• Breach of Contract: an act that breaches a contract that might not be inherently wrong, unlike a tort
• Intentional torts may result in punitive damages being granted by courts
• Unintentional torts result from negligent behavior falling below a minimal social standard
• Vicarious Liability: an employer's liability for injuries caused by an employee during their duties

Types of Intentional Torts

• Only the act leading to the harm needs to be intentional for a tort to be intentional
• Trespass to Person: intentional physical interference with another person
  • Assault: deliberate verbal or physical threat causing fear of physical interference
  • Battery: unwelcome physical contact

Defenses for Trespass to Person

• Consent: operates as a defense when informed and voluntary
  • Actions must be within the bounds of consent. Ex., Mike Tyson biting Evander Holyfield's ear was outside the bounds of consent for boxing
• Self-Defense: allows the use of necessary force when being attacked
  • The force used must be reasonable. Responding to a shove by shooting the attacker is unreasonable
• Trespass to Land: going onto another person's property without lawful right or permission

Continuing Trespass

• Continuing Trespass: a permanent incursion onto another's property, like a building encroaching on the property

Defenses for Trespass

• Consent: when informed and voluntary
• People Acting in an Official Capacity: postal workers, meter readers, city inspectors, and police can enter private property without trespassing
• Trespass to Chattels: direct, intentional interference causing damage to another’s goods
• Conversion: interference depriving someone of their property
• Detinue: wrongfully retaining someone else's goods

False Imprisonment

• False Imprisonment: intentionally restraining someone against their will without lawful authority
  • The person's liberty to go wherever they please must be restrained
  • The restraint must be unlawful
• Malicious Prosecution: criminal prosecution motivated by ill will without reasonable evidence
• Private Nuisance: using property in a way that damages or interferes with another's enjoyment of their property

Requirements to Prove Private Nuisance

• Substantial harm must be proven
• Nuisance must be unreasonable considering all circumstances
• Defamation: publishing a false statement detrimental to a person

Requirements to Prove Defamation

• The words must lower one's reputation to a reasonable person
• The words must refer to the plaintiff
• The words must be shared with at least one person not the plaintiff

Types of Defamation

• Slander: spoken defamatory statements
• Libel: written defamatory statements
• Damages for defamation cases are not capped

Anonymity in Defamation

• Anonymity in Defamation: anonymity doesn't always protect defendants in cyber defamation, web service providers might have to share info
• Defenses for Defamation

Defenses for Defamation

• Truth: is a complete defense if the statement is true; the defendant bears the burden to prove truth
• Absolute Privilege: exemption from liability for defamatory statements in legislatures and courts
• Qualified Privilege: exemption for statements made honestly, without malice, pursuant to a duty, and only to those with a right to know
• Fair Comment: a defense for negative opinions on public figures or works
• Responsible Communication on Matters of Public Interest: a defense for incorrect statements in responsible journalism regarding public interest

Negligence

• Negligence: an unintentional, careless act/omission causing injury to another person/property
• Four elements are required to establish negligence

Elements of Negligence

• A Duty of Care is Owed to the Plaintiff
• Breach of that duty is observed
• Causation exists
• Damages were incurred

A: Duty of Care

• Duty of Care: an obligation to take steps to avoid foreseeable harm
• Courts determine if a duty of care was owed using the Reasonable Foreseeability Test

Reasonable Foreseeability Test

• Was the injury reasonably foreseeable?
• Was there sufficient ‘proximity’ between plaintiff and defendant such that the defendant should have realized their actions posed a risk?
  • Mrs. Donoghue suffered illness from a decomposed snail in ginger beer, leading to a lawsuit against the manufacturer for negligence

Misfeasance vs Nonfeasance

• Misfeasance: wrongful conduct
• Nonfeasance: failure to act
  • Usually nonfeasance activities do not warrant a duty of care

B: Breach of the Standard of Care

• Once a duty of care is established, the next step is determining whether the defendant demonstrated sufficient care

Reasonable Person Test

• Reasonable Person Test: used to determine if the conduct in question is below the standards as what a reasonable person would have done
  • Circumstances to Consider: are considered when determining what a reasonable person would have done
    • Risk of Injury: increased risk elevates the necessary care taken
    • Expenses: if something can be made extremely “safe” but exorbitantly at cost, it cannot be considered as a breach of the standard of care
    • Expertise of Defendant: experts, like doctors, are held to a higher standard

C: Causation

• Causation: used to determine if the defendant is responsible for the losses suffered
  • “But For” Test: the plaintiff must prove that “but for" the conduct of the defendant, no damage or loss would have been incurred
    • It must be proven that “if the defendant had/hadn't done xyz, this would not have happened”
  • Remoteness Test: used to determine if the damages suffered were too far removed from the negligent act
    • A driver crashed into a pole, causing loss of power to a business, resulting in financial losses. The driver could not have predicted that crashing would cut power to a business.

D: Damages

• D: Damages: some sort of loss to a person/property must be suffered to establish negligence
  • Thin Skull Rule: take victims as they existed
    • If someone has brittle bones and harm is caused greater than if they did not have brittle bones, the defendant is still liable
  • Crumbling Skull Rule: a defendant is not liable for losses that were inevitable
    • If a concert pianist has deteriorating arthritis in his hands anyway and loses the ability to play, the defendant cannot be held liable

Defenses for Negligence

• Voluntary Assumption of Risk: requires understanding from both parties that the defendant assumed no responsibility to take due care of the plaintiff and the plaintiff did not expect them to
• Contributory Negligence: failure of the plaintiff to take reasonable care, contributing to their injury
  • For example, the plaintiff tripped and fell in the defendants store resulting in injury but the plaintiff was wearing slippers instead of proper shoes.
• Illegality (Ex Turpi Causa): courts can refuse negligence cases if the injury occurred during an illegal or immoral act

Legislation Impacting Duty of Care

• No Fault Programs: insurance programs compensating injured parties regardless of fault
• Occupiers' Liability: property occupiers have a special obligation for visitor welfare
  • Invitee: someone entering property for business purposes
  • Licensee: someone entering with permission, but not for business
  • Trespasser: someone entering property without permission
• Strict Liability: liability for loss or damage caused by inherently dangerous or unusual activities, regardless of care taken