The Law of Torts
Chapter 4
Civil Actions are Different
Criminal Actions
•Brought by the government
•Government is prosecutor
•Burden of proof – beyond a
reasonable doubt
•Defendant loses if found
guilty
•Usual penalty is a prison
sentence
Civil Actions
– Brought by private citizens
– Party starts action - plaintiff
– Plaintiff has burden of
proof – preponderance of
the evidence
– Defendant loses if found
liable
– Usual penalty is money
damages
Crimes v. Torts
Law of torts grounded in the concept of
rights
– Rights and Duties
Law imposes a duty on all of us to respect
the rights of others
One action can be both a crime and a tort.
Tort law allows for compensation
Torts are either intentional or unintentional
Intentional Torts
When a person knows the consequences
of their actions
– Deceit
– Assault & Battery
– Trespass
– Nuisance
– False Imprisonment
– Defamation
Libel (written)
- Conversion
- Infliction of Emotional
Distress
- Invasion of Privacy
Slander (spoken)
Negligence & Strict Liability
Negligence is a type of tort - Unintentional
To do something, or fail to do something,
that the ordinary and prudent person would
have done
OR Injury caused by carelessness
Strict Liability – injury caused by
participation in an ultra-hazardous activity
How to Prove Negligence
The plaintiff needs to prove four elements
by a preponderance of the evidence
– Duty
– Breach of Duty
– Causation (two parts)
– Damages
1. Duty
Defined: “A legal obligation that is owed to
another”
Defendant failed to act as a reasonable
person would have acted
Example: If you drive a car, you have a
duty to obey the rules of the road
Duty -Continued
Generally speaking, a person owes a “duty
of care” to those around him or her
How is this duty of care determined?
– By an objective standard
“would a reasonable or prudent person in
the defendant’s position act as the
defendant did?
The Duty of Care: Example
Would a reasonable person drive down the
street with a paper grocery bag over her
head?
The reasonable person would not do this
Thus, part of the duty of care when driving
is to not obstruct your vision
Who is the Reasonable Person?
The reasonable person is a legal fiction
The reasonable person
considers: how likely a
certain harm is to occur, how
serious the harm would be if
it did occur, and the burden
involved in avoiding the harm
Negligent Torts: Duty
Can you think of examples of how the
following people fulfill their duty of care?:
1. A lifeguard at a municipal pool.
2. A lumberjack felling a tree.
3. An owner of an aggressive dog.
4. A high school football coach.
2. Breach of Duty
Defined: “Failure to use reasonable care”
Once the duty is established, it is a simple
matter to determine whether the
defendant’s actions met this standard of
care
Problem #1: Duty and Breach
Itchy comes to an uncontrolled intersection
(i.e. no traffic lights or signs) on foot. He
stops at the intersection, looks to the left
and to the right and then crosses the street
How would a “reasonable person” act?
Did Itchy breach the standard of care?
3. Causation
Proximate Cause
– Legal connection between unreasonable
conduct and harm
The defendant’s conduct caused the
plaintiff’s harm.
The harm was foreseeable
Cause in Fact: The “But For” Test
How does the law determine what is a
cause in fact?
The “but for” test: If the defendant had not
acted negligently (by breaching the
standard of care), the plaintiff would not
have been injured
Proximate Cause: Foreseeability
How do courts determine what is a
proximate cause?
Courts apply the foreseeability test
“Was the injury to the plaintiff foreseeable at
the time the defendant engaged in the
unreasonable conduct?”
Negligent Torts: Causation:
Hypo
This is Ken Griffey, Jr.
Ken Griffey, Jr. likes to practice his swing in his living
room.
Unfortunately, this sometimes leads to disaster…
Negligent Torts: Causation:
Hypo 1
One day, while practicing his swing in his
living room, Ken loses his grip on the bat.
The bat flies into the sitting room and hits
his wife’s friend in the head, causing minor
injuries.
Q1: Is there causation in fact?
Q2: In there proximate causation?
4. Actual Harm
A successful case must establish proof of actual
harm.
Did the plaintiff suffer injuries?
Once you prove the actual, physical harm, the
second aspect of damages comes into play:
“Money claimed by, or ordered to be paid to, a
person as compensation for loss or injury”
– The law tries to restore the plaintiff to her pre-injury
condition using money
Types of Damages
Actual Damages
– Doctor Bills, Repair to Vehicles, etc.
– Loss of Income
Compensatory Damages
–
–
–
–
Can be general or specific
Pain & Suffering
Loss of Companionship
Loss of Reputation
Punitive Damages
Meant to punish the defendant
Defenses to Negligence Suits
Disprove any of the four elements
As you know, it is rare that an accident is caused
solely because of one person’s actions
Contributory negligence defense: If the plaintiff’s own
negligence contributed to the harm suffered, the plaintiff
cannot collect anything from the defendant
This defense is only used in a few states and is not the law in
Wisconsin
– Comparative negligence defense: Plaintiff’s recovery
from the defendant is reduced by the percentage that the
plaintiff’s own negligence contributed to the injury
Defenses - Continued
– Assumption of Risk
– If you knowingly engage in an activity that is
dangerous, you “assume the risk” of being
hurt.
– Consent
Strict Liability
Some activities so dangerous, neither
principles or negligence nor intentional
torts apply.
People engaged in dangerous activities
are held responsible for damages
Only applies to ultra-hazardous situations.
Can also be applied to product liability
cases.
The Law of Torts
Chapter 4
Summary
The information covered today is just the tip of
the iceberg
There is much more to learn:
–
–
–
–
More defenses
How to prove the monetary value of a claim to the jury
Multiple causes of an injury
Complex scenarios involving multiple plaintiffs and
multiple defendants
This lesson provides a good foundation so that
you can evaluate your conduct in society and the
conduct of others