ELEMENTS OF TORTS 8/30/2009. Tort A wrongful injury; it’s a private or civil wrong which is not a breach of contract Its some action or conduct by.

ELEMENTS OF ELEMENTS OF TORTSTORTS

8/30/20098/30/2009

TortTort

A wrongful injury; it’s a private or civil A wrongful injury; it’s a private or civil wrong which is not a breach of contractwrong which is not a breach of contract

Its some action or conduct by the Its some action or conduct by the defendant which results from a breach defendant which results from a breach of a legal duty owed by the defendant of a legal duty owed by the defendant to the plaintiff, which proximately to the plaintiff, which proximately causes injury or damage to the plaintiffcauses injury or damage to the plaintiff

Torts may be intentional, negligent or Torts may be intentional, negligent or without fault (strict liability)without fault (strict liability)

Role of Tort LawRole of Tort Law All tort claims are civil matters in which the All tort claims are civil matters in which the

plaintiff is seeking monetary compensation from plaintiff is seeking monetary compensation from the defendant,the defendant,

One act may result in both a criminal case and a One act may result in both a criminal case and a tort case but the end results are very different for tort case but the end results are very different for eacheach

3 types of Torts3 types of Torts

1.1. Negligence based torts –unintentional but Negligence based torts –unintentional but legally careless conductlegally careless conduct

2.2. Intentional Torts – require that the Intentional Torts – require that the defendant desired to cause the defendant desired to cause the consequence of his act or recognizes that consequence of his act or recognizes that the consequences are substantially certain the consequences are substantially certain to result from his actto result from his act

3.3. Strict Liability – legal doctrine that holds a Strict Liability – legal doctrine that holds a manufacturer or a seller liable for all the manufacturer or a seller liable for all the defects and injuries caused by his defects and injuries caused by his products regardless of the degree of care products regardless of the degree of care that he exercisedthat he exercised

Negligence Based TortsNegligence Based Torts Injured party must show the four following Injured party must show the four following

elements to prove negligence:elements to prove negligence:1.1. Duty – must show that the wrongdoer owed Duty – must show that the wrongdoer owed

a duty to the injured partya duty to the injured party2.2. Breach – must show that the duty of care Breach – must show that the duty of care

was breached through some act or omission was breached through some act or omission (failure to act) on the part of the wrongdoer(failure to act) on the part of the wrongdoer

3.3. Causation – must show a casual connection Causation – must show a casual connection between the wrongdoer’s negligent conduct between the wrongdoer’s negligent conduct and the resulting harm to the injured partyand the resulting harm to the injured party

4.4. Damages – must show that the injured party Damages – must show that the injured party suffered actual harm or damagessuffered actual harm or damages

Duty of CareDuty of Care The standard of care one legally owes to another under a The standard of care one legally owes to another under a

certain set of circumstancescertain set of circumstances A duty of care is owed to all A duty of care is owed to all foreseeableforeseeable plaintiffs plaintiffs The extent of the duty is determined by the applicable The extent of the duty is determined by the applicable

standard of carestandard of care The standard of care is usually measured against the The standard of care is usually measured against the

hypothetical reasonable person - which is the degree of hypothetical reasonable person - which is the degree of care a reasonable and prudent person would exercise under care a reasonable and prudent person would exercise under the circumstances.the circumstances.

The reasonable person standard is an objective standard – The reasonable person standard is an objective standard – a defendants mental deficiencies and inexperience are not a defendants mental deficiencies and inexperience are not taken into account (i.e. stupidity is no excuse) However, the taken into account (i.e. stupidity is no excuse) However, the “reasonable person” is considered to have the same “reasonable person” is considered to have the same physical characteristics as the defendant (but one is physical characteristics as the defendant (but one is expected to know one’s physical handicaps and exercise expected to know one’s physical handicaps and exercise the care of a person with such knowledge – e.g., a blind the care of a person with such knowledge – e.g., a blind person should not fly a plane)person should not fly a plane)

Duty of CareDuty of Care A professional or someone with special A professional or someone with special

occupational skills is required to possess the occupational skills is required to possess the knowledge and skill of a member of the knowledge and skill of a member of the profession or occupation in good standing in profession or occupation in good standing in similar communities. Specialists are held to a similar communities. Specialists are held to a national standard of care.national standard of care.

Children are held to the standard of a child of like Children are held to the standard of a child of like age, education, intelligence, and experience. This age, education, intelligence, and experience. This is a subjective test. Rule is that a child under four is a subjective test. Rule is that a child under four is usually without the ability to be negligentis usually without the ability to be negligent

Common carriers (i.e. bus drivers) and innkeepers Common carriers (i.e. bus drivers) and innkeepers are held to a very high degree of care – they are are held to a very high degree of care – they are liable for even the slightest negligence – liable for even the slightest negligence – however, the plaintiff must be a passenger or however, the plaintiff must be a passenger or guest in order for the higher standard to applyguest in order for the higher standard to apply

Breach of DutyBreach of Duty

Where the defendant’s conduct has fallen Where the defendant’s conduct has fallen short of that level required by the short of that level required by the applicable standard of care owed to the applicable standard of care owed to the plaintiff, she has breached her dutyplaintiff, she has breached her duty

Whether the duty of care is breached in an Whether the duty of care is breached in an individual case is a question for the trier of individual case is a question for the trier of fact (jury, judge)fact (jury, judge)

In some cases, the very occurrence of an In some cases, the very occurrence of an event may tend to establish a breach of event may tend to establish a breach of duty. This is known as the doctrine of duty. This is known as the doctrine of res res ipsa loquitur ipsa loquitur (the thing speaks for itself)(the thing speaks for itself)

Res Ipsa LoquiturRes Ipsa Loquitur

Requires the plaintiff to show that:Requires the plaintiff to show that:1.1. the accident causing the injury is a type that the accident causing the injury is a type that

would not normally occur unless someone would not normally occur unless someone was negligent, andwas negligent, and

2.2. The negligence is attributable to defendant The negligence is attributable to defendant (i.e. this type of accident ordinarily happens (i.e. this type of accident ordinarily happens because of the negligence of someone in because of the negligence of someone in defendant’s position) This is often shown by defendant’s position) This is often shown by evidence that the instrumentality causing the evidence that the instrumentality causing the injury was in the exclusive control of injury was in the exclusive control of defendant)defendant)

CausationCausation Once negligent conduct is shown (a breach of the Once negligent conduct is shown (a breach of the

standard of care to a foreseeable plaintiff), standard of care to a foreseeable plaintiff), plaintiff must show that the conduct was the plaintiff must show that the conduct was the cause of his injury.cause of his injury.

For liability to attach, plaintiff must show For liability to attach, plaintiff must show bothboth actual cause and proximate cause.actual cause and proximate cause.

Actual cause – before defendant’s conduct can be Actual cause – before defendant’s conduct can be considered a proximate cause of plaintiff’s injury, considered a proximate cause of plaintiff’s injury, it must first be a cause in fact of the injury.it must first be a cause in fact of the injury.– ““But for” test – an act or omission is the cause in fact of But for” test – an act or omission is the cause in fact of

an injury when the injury would not have occurred but an injury when the injury would not have occurred but for the actfor the act

CausationCausation Proximate cause – in addition to being a cause in Proximate cause – in addition to being a cause in

fact, the defendant’s conduct must also be the fact, the defendant’s conduct must also be the proximate cause of the injury. proximate cause of the injury.

Even though the conduct actually caused the Even though the conduct actually caused the plaintiff’s injury, it might not be deemed to be the plaintiff’s injury, it might not be deemed to be the proximate causeproximate cause

The doctrine of proximate causation is a The doctrine of proximate causation is a limitation of liability and deals with limiting the limitation of liability and deals with limiting the consequences for unforeseeable or unusual consequences for unforeseeable or unusual consequences of one’s actsconsequences of one’s acts

Generally, a defendant is liable for all harmful Generally, a defendant is liable for all harmful results that are the normal incidents caused by results that are the normal incidents caused by his acts. This is called the his acts. This is called the foreseeabilityforeseeability test. test.

CausationCausation

Intervening cause – an independent cause Intervening cause – an independent cause occurring between the original negligent occurring between the original negligent act or omission and the ultimate injury.act or omission and the ultimate injury.

If the intervening act is a foreseeable If the intervening act is a foreseeable event, then its likely that liability for the event, then its likely that liability for the injury will attach to the original wrongdoer injury will attach to the original wrongdoer (example: subsequent medical malpractice)(example: subsequent medical malpractice)

If the intervening act was unforeseeable, If the intervening act was unforeseeable, then the intervening cause relieves the then the intervening cause relieves the original wrongdoer (tortfeasor) of liability original wrongdoer (tortfeasor) of liability for the ultimate injuryfor the ultimate injury

Defenses to NegligenceDefenses to Negligence

Assumption of Risk – plaintiff may be denied Assumption of Risk – plaintiff may be denied recovery if she assumed the risk of any recovery if she assumed the risk of any damage caused by defendant’s act.damage caused by defendant’s act.

Plaintiff must have known of the risk and Plaintiff must have known of the risk and voluntarily proceeded in the face of the risk.voluntarily proceeded in the face of the risk.

Comparative negligence – compares the Comparative negligence – compares the degree of fault attributable to a defendant degree of fault attributable to a defendant and a plaintiff in a negligence suit and and a plaintiff in a negligence suit and reduces damages accordingly (i.e. if plaintiff reduces damages accordingly (i.e. if plaintiff is 10% at fault then her damages are is 10% at fault then her damages are reduced by 10%)reduced by 10%)

Intentional Torts To The PersonIntentional Torts To The Person

Intentional Torts – require that the Intentional Torts – require that the defendant desired to cause the defendant desired to cause the consequence of his act or recognizes consequence of his act or recognizes that the consequences are that the consequences are substantially certain to result from substantially certain to result from his act.his act.

Everyone is capable of intent. Young Everyone is capable of intent. Young children and persons who are children and persons who are mentally incompetent will be liable mentally incompetent will be liable for their intentional torts.for their intentional torts.

Intentional Torts To The PersonIntentional Torts To The Person AssaultAssault – an intentional act by the defendant – an intentional act by the defendant

creating a reasonable apprehension in creating a reasonable apprehension in plaintiff of the immediate or harmful or plaintiff of the immediate or harmful or offensive contact to plaintiff’s personoffensive contact to plaintiff’s person– Don’t confuse apprehension with fear or Don’t confuse apprehension with fear or

intimidation (e.g. a weakling can cause intimidation (e.g. a weakling can cause apprehension and thus assault a bully)apprehension and thus assault a bully)

– Words alone are not sufficient. In order for the Words alone are not sufficient. In order for the defendant to be liable the words must be coupled defendant to be liable the words must be coupled with conduct (e.g. shaking your fist at someone with conduct (e.g. shaking your fist at someone while saying you’d like to punch them)while saying you’d like to punch them)

– Plaintiff must be apprehensive that she is going to Plaintiff must be apprehensive that she is going to become the victim of an become the victim of an immediateimmediate battery. battery.


BatteryBattery – an intentional harmful or offensive – an intentional harmful or offensive contact to the plaintiff’s person without contact to the plaintiff’s person without consentconsent– Harmfulness and offensiveness are judged by a Harmfulness and offensiveness are judged by a

reasonable person standardreasonable person standard– Plaintiff’s person includes anything connected to Plaintiff’s person includes anything connected to

the plaintiff (i.e. clothes, hat, purse)the plaintiff (i.e. clothes, hat, purse) You can have an assault without a battery or You can have an assault without a battery or

a battery without an assault – they are two a battery without an assault – they are two separate and distinct tortious act although separate and distinct tortious act although most people consider them to go togethermost people consider them to go together

Intentional Torts To The PersonIntentional Torts To The Person False imprisonmentFalse imprisonment – an intentional act or – an intentional act or

omission on the part of the defendant that omission on the part of the defendant that confines or restrains the plaintiff to a bounded confines or restrains the plaintiff to a bounded area.area.– Sufficient acts of restraint include physical barriers, Sufficient acts of restraint include physical barriers,

physical force, threats of force, failure to release and physical force, threats of force, failure to release and invalid use of legal authorityinvalid use of legal authority

– It is irrelevant how short the time of the confinement isIt is irrelevant how short the time of the confinement is– Plaintiff must Plaintiff must knowknow of the confinement or be of the confinement or be harmedharmed

by itby it– For an area to be bounded, freedom of movement must For an area to be bounded, freedom of movement must

be limited in all directions – there must be no be limited in all directions – there must be no reasonablereasonable means of escape means of escape knownknown to plaintiff to plaintiff


Infliction of emotional distressInfliction of emotional distress – an – an intentional act by the defendant intentional act by the defendant amounting to extreme and amounting to extreme and outrageous conduct leading to outrageous conduct leading to severe emotional distress in the severe emotional distress in the plaintiffplaintiff– Extreme and outrageous conduct is Extreme and outrageous conduct is

conduct that exceeds the bounds of conduct that exceeds the bounds of decencydecency

Intentional Torts To The PersonIntentional Torts To The Person Invasion of privacyInvasion of privacy - this tort includes four - this tort includes four

types of wrongs:types of wrongs:1.1. appropriation of plaintiff’s picture or name – must appropriation of plaintiff’s picture or name – must

show the unauthorized use of plaintiff’s picture or show the unauthorized use of plaintiff’s picture or name for defendant’s commercial advantagename for defendant’s commercial advantage

2.2. intrusion upon plaintiff’s affairs or seclusion – the act intrusion upon plaintiff’s affairs or seclusion – the act of prying or intruding must be objectionable by a of prying or intruding must be objectionable by a reasonable person and the thing into which there is an reasonable person and the thing into which there is an intrusion must be privateintrusion must be private

3.3. publication of facts placing plaintiff in false light – publication of facts placing plaintiff in false light – where one attributes to plaintiff a view he does not where one attributes to plaintiff a view he does not hold or action he did not take hold or action he did not take

4.4. public disclosure of private facts about plaintiff – must public disclosure of private facts about plaintiff – must be the public disclosure of private information be the public disclosure of private information (matters of public record are not sufficient)(matters of public record are not sufficient)

DefamationDefamation Defamation – Defamation – the publication of material the publication of material

injurious to a person’s good name and injurious to a person’s good name and reputationreputation– Publication means communication of the Publication means communication of the

defamation to someone other than the plaintiff. defamation to someone other than the plaintiff. – Slander – spoken defamationSlander – spoken defamation– Libel – written or printed publication of Libel – written or printed publication of

defamatory language, includes pictures and defamatory language, includes pictures and radio and television broadcastsradio and television broadcasts

– Defamation can involve damage to the good Defamation can involve damage to the good name of a business – therefore companies name of a business – therefore companies need to be careful about what they say about need to be careful about what they say about competitors and their productscompetitors and their products

Defamation DefensesDefamation Defenses Truth and privilege are defenses to an action for defamation.Truth and privilege are defenses to an action for defamation. If the statement that caused the harm to a person’s If the statement that caused the harm to a person’s

reputation is in fact the truth it may be a complete defense reputation is in fact the truth it may be a complete defense to the tort of defamationto the tort of defamation

Absolute privilege – can never be lost -defendant may be Absolute privilege – can never be lost -defendant may be protected by an absolute privilege for the following: remarks protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators in debate, made during judicial proceedings, by legislators in debate, by federal executive officials and between spousesby federal executive officials and between spouses

Qualified (conditional) privilege – can be lost through abuse – Qualified (conditional) privilege – can be lost through abuse – a speaker may have a qualified privilege if the statement a speaker may have a qualified privilege if the statement was published in good faith and with proper motiveswas published in good faith and with proper motives

Constitutional privilege – the First Amendment to the Constitutional privilege – the First Amendment to the Constitution guarantees freedom of speech and freedom of Constitution guarantees freedom of speech and freedom of press. This protects members of the press who publish press. This protects members of the press who publish opinion material about public officials, public figures, or opinion material about public officials, public figures, or persons of legitimate public interest. This privilege is lost if persons of legitimate public interest. This privilege is lost if the statement is made with actual malice (reckless disregard the statement is made with actual malice (reckless disregard for the truth) for the truth)