Introduction to torts One definition and purpose.
Definition of a tort A tort is a civil wrong other than a breach
of contract that causes harm or loss to another person.
The person who commits the tort is called a tort feaser, and the
injured party is known as the plaintiff.
The primary objective of tort lies to provide relief to the
injured party and to deter others from committing similar
harms. Purpose of Tort Law Compensation
The primary goal of tort lies to compensate the victims for their
losses. This includes economic damages
like medical expenses and lost wages, and non economic damages
such as pain and suffering. Deterrence Tort lines to deter
individuals and companies from engaging in behavior that could
harm others. By holding tort feasors
accountable, tort law discourages negligent and
intentional misconduct. Justice Tort law seeks to
provide a sense of justice to the injured party.
It ensures that those who have suffered due to another's
wrongful actions are made whole to the extent possible.
Restoration Beyond compensation, tort law sometimes includes
restorative practices requiring the wrongdoer to repair or
rectify the harm done. 2 Historical Background Origins
Tort law has its roots in ancient legal systems, including
Roman law and early English common law.
It has evolved over centuries to address the changing nature of
societal harms. Common Law Development The
development of tort law and common law jurisdictions has
been heavily influenced by judicial decisions.
Courts have played a crucial role in defining the elements
and defenses of various torts. Statutory Influences In modern
times, many aspects of tort law have been codified through
statutes. Legislatures have enacted laws
to address specific issues, such as product liability and
environmental torts. 3 Classification of torts
Intentional towards These occur when a person intentionally acts
in a way that causes harm to another.
Examples include assault, battery, false imprisonment, and
intentional infliction of emotional distress.
Negligence Negligence occurs when a person fails to exercise
reasonable care, resulting in harm to another.
The elements of negligence include duty, breach of duty,
causation, and damages. Strict liability In strict
liability cases, a person may be held liable for harm without
proof of fault. This typically applies to
inherently dangerous activities, certain animal related injuries,
and defective products. Four key concepts in tort law
Duty of care A fundamental concept in negligence, the duty
of care refers to the obligation to avoid acts or omissions that
could foreseeably cause harm to others.
Breach of duty. This occurs when a person fails
to meet the standard of care expected under the
circumstances. Causation To establish
liability, the plaintiff must show that the defendants actions
caused the harm. This involves both actual cause
but for causation and proximate cause.
Foreseeability Damages Damages are the monetary compensation
awarded to the plaintiff They may include compensatory damages
for actual losses and punitive damages to punish and deter
particularly egregious conduct. 5 Differences from criminal law
Nature of wrong Tort law deals with civil wrongs and private
disputes, while criminal law addresses offenses against the
state or society. Burden of proof In tort cases,
the plaintiff must prove their case by a preponderance of the
evidence. More likely than not, in
criminal cases, the prosecution must prove guilt beyond a
reasonable doubt. Purpose The primary goal of tort
lies to compensate the victim, whereas criminal lines to punish
the offender and protect society.
The introduction to torts lays the groundwork for understanding
the complexities of tort law. By grasping the definitions,
purposes, historical context, and key concepts, students can
build a strong foundation for further study in this crucial
area of law. One.
Intentional torts Intentional torts occur when a person
deliberately engages in actions that cause harm to another.
The intent does not necessarily mean a desire to cause harm, but
rather the intention to perform the ACT that led to the harm.
Assault and Battery Assault Assault is the act of creating
an apprehension in another person of an imminent harmful or
offensive contact. The elements of assault include
intent. The defendant must intend to
cause apprehension of immediate harm or offensive contact.
Apprehension. The plaintiff must reasonably
perceive an imminent threat of harm.
Imminence. The threat must be immediate,
not a future harm. Battery.
Battery involves the actual infliction of harmful or
offensive contact on another person.
The elements of battery are intent.
The defendant must intend to cause harmful or offensive
contact. Harmful or offensive contact.
The contact must be harmful or offensive to a reasonable
person. Contact.
There must be actual physical contact with the plaintiff.
False imprisonment. False imprisonment is the
unlawful confinement of a person without their consent.
The elements include intent. The defendant must intend to
confine the plaintiff. Confinement.
The plaintiff must be confined within a bounded area.
Awareness or harm. The plaintiff must be aware of
the confinement or harmed by it. Intentional infliction of
emotional distress IAD. It occurs when a person engages
in extreme and outrageous conduct that causes severe
emotional distress to another. The elements are intent or
recklessness. The defendant must intend to
cause emotional distress or act recklessly.
Extreme and outrageous conduct. The conduct must go beyond all
bounds of decency. Causation.
The defendant's conduct must cause the emotional distress.
Severe emotional distress. The emotional distress must be
severe. Trespass to land.
Trespass to land involves the unauthorized entry onto another
person's property. The elements include intent.
The defendant must intend to enter the land.
Unauthorized entry. The entry must be without the
plaintiff's permission. Property.
The entry must be onto the plaintiff's land.
Trespass to chattels and conversion.
Trespass to chattels. This tort involves the
intentional interference with another's personal property.
The elements are intent. The defendant must intend to
interfere with the chattel interference.
The interference must cause dispossession or damage to the
chattel. Damage.
The interference must result in harm to the chattel or
deprivation of its use. Conversion.
Conversion is an intentional exercise of dominion or control
over another's personal property which seriously interferes with
the owner's rights. The elements are intent.
The defendant must intend to exercise control over the
chattel. Substantial interference.
The interference must be significant enough to warrant
full value compensation. Ownership.
The plaintiff must have ownership or the right to
possession of the chattel. 2 Negligence Negligence occurs
when a person fails to exercise reasonable care, resulting in
harm to another. The elements of negligence are
duty of care. The defendant must owe a duty of
care to the plaintiff. This duty is often determined by
the standard of what a reasonable person would do in
similar circumstances. Breach of duty The defendant
breaches the duty of care by failing to act as a reasonable
person would. This breach can be through
action or omission. Causation Actual cause Cause in
fact. The plaintiff must show that the
defendant's actions were the actual cause of the harm.
This is often tested by the buffer rule.
But for the defendant's actions, the harm would not have
occurred. Proximate cause.
The harm must be a foreseeable result of the defendant's
actions. Proximate cause limits liability
to harms that were reasonably foreseeable.
Damages. The plaintiff must suffer actual
harm or injury as a result of the defendant's breach.
This can include physical injury, property damage, or
economic loss. Defenses to negligence.
Contributory negligence. The plaintiff's own negligence
contributed to the harm, which can bar or reduce recovery.
Comparative negligence. The plaintiff's recovery is
reduced by the percentage of their own fault.
There are two types. Pure comparative negligence
plaintiff can recover even if 99% at fault and modified
comparative negligence plaintiff can recover only if less than
50% or 51% at fault. Assumption of risk The plaintiff
knowingly and voluntarily assumed the risk of harm. 3
Strict liability Strict liability imposes liability
without fault for certain activities that are inherently
dangerous or involve certain animals and products.
Abnormally dangerous activities Activities that are inherently
dangerous and cannot be made safe even with the exercise of
due care. Examples include using
explosives or handling hazardous chemicals.
The elements are the activity involves a high degree of risk.
The risk cannot be eliminated with due care.
The activity is not commonly performed in the area.
Animals Wild Animals Owners of wild animals are strictly liable
for harm caused by the animals, regardless of the precautions
taken. Domestic animals owners are
liable if they knew or should have known of the animals.
Dangerous propensities Product liability Manufacturers and
sellers can be held strictly liable for defective products
that cause harm. The elements include defect.
The product must have a defect that makes it unreasonably
dangerous. Defects can be manufacturing
defects, design defects, or warning defects.
Causation. The defect must cause the
plaintiff's injury. Damages.
The plaintiff must suffer actual harm or injury.
This detailed elaboration on the types of torts provides a
comprehensive understanding of the various categories and
elements involved. Each type can be further
explored with case law examples and deeper discussions on
nuances and defenses to build a thorough knowledge base.
Defenses to Torts 1 Defenses to Intentional Torts Intentional
torts involve deliberate actions that cause harm, but certain
defenses can absolve the defendant from liability.
Consent Express consent The plaintiff explicitly agrees to
the defendants conduct either verbally or in writing.
Example A patient consents to a surgical procedure.
Implied consent Consent is inferred from the plaintiff's
actions or the circumstances. Example Participation in a
contact sport implies consent to some physical contact.
Scope of consent Consent must be within the boundaries of what
was agreed upon. Exceeding these boundaries can
negate the consent defense. self-defense Reasonable force A
person may use reasonable force to protect themselves from
imminent harm. Example Using physical force to
fend off an attacker. Proportionality.
The force used must be proportionate to the threat.
Deadly force is only justified when faced with a threat of
serious bodily harm or death. Defense of others Similar to
self-defense, a person may use reasonable force to protect
another person from harm. Example intervening to stop an
assault on another person. Proportionality.
The force used must be proportionate to the threat
faced by the other person. Defensive Property Reasonable
force A person may use reasonable force to prevent
trespass or theft of their property.
Example Using reasonable force to eject a trespasser from one's
property. Deadly Force Generally, deadly
force cannot be used solely to protect property.
Some jurisdictions allow deadly force if the trespasser poses a
threat to personal safety. Necessity Public necessity Acts
taken to prevent a greater harm to the public can be justified.
This defense absolves the defendant from liability.
Example Destroying property to create a firebreak during a
wildfire. Private necessity.
Acts taken to prevent harm to oneself or one's property are
justified but require compensation for any damages
caused. Example, Docking a boat on
private property during a storm to avoid sinking.
Two defenses to negligence. Negligence involves a breach of
duty that causes harm, but various defenses can reduce or
eliminate liability. Contributory negligence In
jurisdictions following contributory negligence, if the
plaintiff is found to be even slightly negligent and
contributed to their own harm, they are barred from recovering
any damages. Example, a pedestrian who
jaywalks and is hit by a car may be barred from recovery if
they're jaywalking contributed to the accident.
Comparative negligence Pure comparative negligence.
The plaintiffs damages are reduced by the percentage of
their own fault, but they can still recover some damages even
if they are mostly at fault. Example, if a plaintiff is 80%
at fault and the total damages are $100,000, they can recover
$20,000. Modified comparative negligence.
The plaintiff can only recover if their fault is below a
certain threshold, typically 50% or 51%.
Example, if a plaintiff is 40% at fault and the total damages
are $100,000, they can recover $60,000.
If they are 55% at fault, they recover nothing.
Assumption of risk Express assumption of risk The plaintiff
explicitly agrees to assume the risk of harm, usually through a
written agreement. Example Signing a waiver before
participating in a high risk activity like skydiving.
Implied assumption of risk The plaintiff implicitly assumes the
risk through their conduct or the nature of the activity.
Example A spectator at a baseball game assumes the risk
of being hit by a foul ball. Scope of risk The risk assumed
must be inherent to the activity and reasonably foreseeable.
Three other defenses in tort law.
Statute of limitations Definition The statute of
limitations sets a time limit within which a plaintiff must
file a lawsuit. Failure to file within this
period can bar the claim. Example If the statute of
limitations for personal injury is three years, the plaintiff
must file the lawsuit within three years of the injury.
Discovery Rule In some cases, the statute of limitations
begins to run when the plaintiff discovers or should have
discovered the injury. Example If a plaintiff discovers
medical malpractice two years after surgery, the statute of
limitations may begin from the discovery date.
Statute of Repose Definition The statute of repose sets an
absolute deadline for filing a lawsuit, regardless of when the
harm was discovered. It often applies to product
liability and construction cases.
Example, If the statute of repose for a defective product
is 10 years, any claims must be filed within 10 years of the
products manufacturer, regardless of when the defect
was discovered. Immunity Sovereign immunity.
The government and its agencies are often immune from lawsuits
unless they consent to be sued. Example Federal and state
governments may have limited waivers of immunity under
specific statutes like the Federal Tort Claims Act.
Qualified immunity. Government officials performing
discretionary functions are immune from liability unless
they violate clearly established statutory or constitutional
rights. Example Police officers may be
protected by qualified immunity in certain circumstances.
Necessity Public necessity Acts taken to prevent a greater harm
to the public can be justified. This defense absolves the
defendant from liability. Example.
Destroying property to create a firebreak during a wildfire.
Private necessity acts taken to prevent harm to oneself or one's
property are justified but require compensation for any
damages caused. Example, docking a boat on
private property during a storm to avoid sinking.
By understanding these defenses, one can better appreciate the
complexities of tort law and the various factors that influence
liability and compensation in civil cases.
Damages in Tort Law Damages are a crucial aspect of tort laws.
They provide monetary compensation to the injured
party. The main goal is to restore the
plaintiff to the position they were in before the tort
occurred. Damages can be categorized into
compensatory, punitive and nominal damages. 1 Compensatory
damages Compensatory damages aimed to compensate the
plaintiff for losses suffered due to the defendant's tortious
conduct. They are further divided into
economic and non economic damages, economic damages,
medical expenses, compensation for past, present and future
medical costs incurred due to the injury.
This includes hospital bills, doctor's fees, physical therapy,
medication, and any necessary medical equipment.
Example A plaintiff injured in a car accident receives
compensation for emergency room visits, surgeries, and
rehabilitation sessions. Lost wages Compensation for the
income lost due to the inability to work as a result of the
injury. This covers both past and future
lost earnings. Example An injured construction
worker unable to work for six months receives compensation for
lost wages during that period. Loss of earning capacity If the
injury results in a long term or permanent reduction in the
plaintiff's ability to earn income, they may be compensated
for this diminished earning capacity.
Example A pianist who loses the use of a hand receives
compensation for the loss of their career and future
earnings. Property damage Compensation for
the repair or replacement of property damage due to the
defendants actions. Example Compensation for car
repairs after a collision caused by the defendant.
Non economic damages. Pain and Suffering Compensation
for the physical pain and emotional distress suffered due
to the injury. This includes past, present, and
future suffering. Example A plaintiff with severe
burns receives compensation for the ongoing pain and emotional
trauma experienced. Emotional Distress Compensation
for psychological impact such as anxiety, depression, or PTSD
resulting from the tortious act. Example, A victim of a traumatic
accident receives compensation for the resulting anxiety and
fear of driving. Loss of consortium compensation
awarded to the plaintiff's spouse for the loss of
companionship, affection, and sexual relationship due to the
injury. Example, A spouse of a
permanently injured plaintiff receives compensation for the
impact on their marital relationship.
Loss of enjoyment of life Compensation for the diminished
ability to enjoy life's pleasures and activities due to
the injury. Example An avid runner who can
no longer participate in marathons receives compensation
for the loss of this enjoyment. Two punitive damages Punitive
damages are awarded to punish the defendant for particularly
egregious conduct and to deter similar behavior in the future.
These damages are not intended to compensate the plaintiff, but
to serve as a warning to others. Purpose and Standards for
awarding punitive damages Deterrence and Punishment
Punitive damages are meant to deter the defendant and others
from engaging in similar conduct.
They are awarded when the defendant's actions are deemed
malicious, willful, or grossly negligent.
Example A company knowingly sells a dangerous product
without warning consumers and is awarded punitive damages to
discourage such conduct. Standards for awarding The court
considers the reprehensibility of the defendant's conduct, the
ratio of punitive to compensatory damages, and
comparable civil penalties. Some jurisdictions have
statutory limits on the amount of punitive damages that can be
awarded. Example A court awards punitive
damages that are proportionate to the compensatory damages and
reflect the severity of the defendant's misconduct. 3
Nominal damages. Nominal damages are a small
amount of money awarded to the plaintiff when a legal wrong has
occurred, but no substantial harm or loss has been suffered.
These damages acknowledge the plaintiff's rights were violated
even if no actual damages were incurred.
Purpose of Nominal Damages Recognition of Rights Nominal
damages served to recognize that the plaintiffs legal rights were
infringed upon even in the absence of significant harm.
Example A plaintiff wins a case for trespass, but suffers no
actual damage to their property and is awarded a nominal amount
such as $1.00. Symbolic Importance These
damages can serve as a moral victory for the plaintiff and
establish a precedent for the recognition of similar rights in
future cases. Example A court awards nominal
damages to affirm the plaintiff's right to free speech
in a case where no financial loss occurred.
Understanding the various types of damages and tort law is
essential for appreciating how the legal system seeks to
redress wrongs and compensate victims.
By categorizing and elaborating on economic, non economic,
punitive, and nominal damages, this framework helps ensure that
plaintiffs receive fair and appropriate compensation for the
harms they suffer. It also underscores the
importance of punitive damages in deterring wrongful conduct
and upholding justice. Special Tort Doctrines Special
tort doctrines are principles that modify or extend the
general rules of tort law to address specific situations.
These doctrines ensure that justice is served in cases that
might not fit neatly into the standard framework of tort
liability. 1 Vicarious liability Vicarious liability is a legal
doctrine that holds one party liable for the tortious actions
of another based on their relationship.
Employer liability for employee actions respond to its superior
doctrine Explanation Under the doctrine of respond to its
superior, an employer is liable for the torts committed by an
employee if the tortious acts occur within the scope of
employment. Scope of employment Actions are
considered within the scope of employment if they are performed
in the course of duties assigned by the employer or in
furtherance of the employer's business.
Example If a delivery driver causes an accident while making
deliveries, the employer may be held liable for any damages
caused. Intentional towards Employers
may also be liable for intentional torts committed by
employees if the actions are closely related to their job
duties. Example, A security guard using
excessive force while apprehending a suspected
shoplifter might result in employer liability.
Liability for independent contractors General rule
Employers are generally not liable for the torts of
independent contractors. Exceptions There are exceptions
where an employer might be held liable.
Non Delegable duties Employers can be held liable for torts
arising from activities that carry a peculiar risk of harm
unless special precautions are taken.
Example A construction company hiring a subcontractor to
demolish a building may still be liable if the subcontractors
negligence causes harm. A parent authority If an
independent contractor is held out as an employee, the employer
might be liable. Example A hospital might be
liable for the negligence of an independent contractor doctor if
the patient reasonably believes the doctor is a hospital
employee. 2 Joint and Several Liability Joint and several
liability is a legal doctrine that allows a plaintiff to
recover the full amount of damages from any defendant,
regardless of their individual share of the liability.
Definition and application Joint Liability Multiple defendants
are jointly liable when they collectively engage in tortious
conduct that causes harm. Each defendant is responsible
for the entire harm. Example Two drivers, both acting
negligently and causing an accident, can be jointly liable
for the plaintiff's injuries. Several liability Each defendant
is individually responsible for their proportionate share of the
damages. Example, if one defendant is 30%
at fault and another is 70% at fault, each is responsible only
for their share of the damages. Joint and several liability.
This doctrine allows the plaintiff to recover the entire
amount of damages from any defendant who can then seek
contribution from other liable parties.
Example If a plaintiff is awarded $100,000 and there are
three jointly and severally liable defendants, the plaintiff
can collect the entire amount from anyone defendant who can
then seek reimbursement from the others.
Contribution and indemnity among tortfeasers.
Contribution. A defendant who pays more than
their share of damages can seek contribution from other jointly
liable defendants. Example.
If one defendant pays the full $100,000 judgment, they can seek
$50,000 each from two other equally liable defendants.
Indemnity. A defendant can seek full
reimbursement from another party who bears the ultimate
responsibility. Example.
An employer may seek indemnity from an employee whose negligent
actions cause the employer to be held liable. 3 Statutes of
Limitations and Repose Statutes of limitations and statutes of
repose are legal time limits within which a plaintiff must
file a lawsuit. These statutes aim to ensure
fairness and avoid litigation over stale claims.
Statutes of limitations Definition The statute of
limitations sets a deadline for filing a lawsuit from the time
the injury or harm occurred or was discovered.
Example The statute of limitations for personal injury
claims is often two to three years from the date of the
injury. Discovery Rule This rule allows
the statute of limitations to begin when the plaintiff
discovers or reasonably should have discovered the injury.
Example If a patient discovers surgical malpractice 2 years
after the surgery, the statute of limitations may start from
the discovery date rather than the surgery date.
Statutes of Repose Definition The statute of repose sets an
absolute deadline for filing a lawsuit, regardless of when the
harm was discovered. It often applies to product
liability, construction defects, and other long term liability
cases. Example, A statute of repose
might require that all product liability claims be filed within
10 years of the products manufacturer, regardless of when
the defect was discovered. Application Statutes of repose
provide finality and predictability for defendants by
limiting the time period during which they can be sued.
Example, a builder is protected from lawsuits for construction
defects after a set period, such as 15 years from the completion
of the building. Understanding special tort
doctrines is essential for grasping the full scope of tort
law and its applications. These doctrines address unique
circumstances and relationships, ensuring that the legal system
fairly and efficiently allocates responsibility and provides
remedies. Summary and importance of torts
Recap of key concepts Types of torts Torts can be broadly
categorized into intentional torts, negligence, and strict
liability. Each category has specific
elements that must be proven for the plaintiff to succeed in
their claim. Intentional torts These include
actions like assault, battery, false imprisonment, intentional
infliction of emotional distress, trespass to land, and
trespass to chattels. They require deliberate action
by the defendant. Negligence.
This involves a breach of duty of care resulting in harm.
Key elements include duty, breach, causation and damages.
Defenses like contributory negligence, comparative
negligence and assumption of risk can mitigate liability.
Strict liability. This applies to inherently
dangerous activities, certain animal related injuries and
defective products. Liability is imposed without
fault, focusing on the nature of the activity or product.
Significance of defenses. Intentional towards defenses
such as consent, self-defense, defense of others, defensive
property, and necessity can absolve or mitigate the
defendant's liability. Negligence defenses like
contributory negligence, comparative negligence, and
assumption of risk help determine the extent of the
defendant's liability and the plaintiff's recovery.
Special Tort doctrines Doctrines like vicarious liability joint
in several liability statutes of limitations and statutes of
repose address unique circumstances and ensure
fairness in assigning liability damages in tort law.
Compensatory Damages. These are intended to restore
the plaintiff to their pre injury position covering both
economic medical expenses, lost wages and non economic pain and
suffering emotional distress losses.
Punitive damages aimed at punishing the defendant and
deterring future misconduct. These are awarded in cases of
particularly egregious behavior. Nominal damages awarded when a
legal wrong occurred but no substantial harm resulted.
Recognizing the plaintiff's rights.
Special tort doctrines. Vicarious liability holds one
party liable for another's actions based on their
relationship, such as employer, employee, joint, and several.
Liability allows plaintiffs to recover full damages from any
liable party who can then seek contribution from others.
Statutes of limitations and repose Set time limits for
filing lawsuits. Ensuring timely and fair
litigation application in legal practice.
Case analysis. Understanding tort principles
enables attorneys to analyze cases, accurately identify
liable parties, and evaluate potential defenses.
Client advocacy. Knowledge of damages and special
doctrines helps attorneys advocate effectively for fair
compensation and justice for their clients.
Risk Management for businesses and individuals understanding
tort liabilities and defenses aids and managing risks and
preventing legal disputes. Importance in the legal system.
Protection of rights Tort law safeguards individuals rights by
providing remedies for wrongful acts, promoting a sense of
justice and accountability. Deterrence By holding parties
accountable for their actions, tort law deters harmful
behavior, contributing to a safer and more responsible
society. Compensation Ensuring that
victims receive appropriate compensation for their losses
helps restore them to their pre injury condition, mitigating the
impact of wrongful conduct. Social Justice Tort law
addresses and balances of power and resources, offering a
mechanism for individuals to seek redress against more
powerful entities. As you continue your journey and
mastering tort law, remember that each concept and principle
you learn brings you closer to becoming a skilled and
compassionate advocate for justice.
The complexities of tort law require diligence and
perseverance, but your efforts will empower you to make a
meaningful difference in the lives of those wronged by
tortious conduct. Embrace the challenges and
remain committed to your studies, knowing that your
dedication will equip you with the knowledge and skills
necessary to excel in your legal career.
Stay motivated, keep pushing forward, and trust in your
ability to achieve your goals. The path to becoming an expert
in tort law is demanding, but your hard work and determination
will lead you to success. The study of tort law is a vital
part of legal education and practice, providing a foundation
for understanding how the legal system addresses harm and
allocates responsibility. By grasping the nuances of
torts, defenses, damages, and special doctrines, you will be
well prepared to navigate this critical area of law, advocate
for your clients, and contribute to the pursuit of justice.
Keep striving for excellence, and remember that every step you
take in learning tort law brings you closer to making a positive
impact in the legal profession and society as a whole.