THE ESSENTIALS—Unit III—Torts
UNIT GOALS
What four primary purposes are carried out by tort law?
How is tort law similar to and different from criminal law?
How does the process of a civil tort law case differ from a criminal law case?
How does tort law apportion liability when multiple parties are found to be at fault?
When and why does the tort law system impose “strict” liability?
What defenses apply in tort law cases?
Essential Vocabulary—Concepts
Essential Vocabulary—Intentional Torts
Tort—Largest area of civil law. In civil law, when a
person commits a wrong.
Plaintiff—In civil law, this person is the “harmed” one.
Defendant—The accused “wrong-doer” in a civil
lawsuit.
Judgment—The court’s decision in a civil case.
Equivalent to a verdict
Damages—$$ asked for or paid by court order to a
plaintiff for injuries or losses suffered. Question of
HOW MUCH
Liable—Legally responsible for harm. Question of WHO
Remedy—What is done to compensate for an injury or
to enforce some right. To make up for harm.
Settlement—Agreement met between 2 parties
keeping them out of court. 90% of all cases end in
settlement.
Intentional tort— An action taken deliberately to harm
another person; intentional wrong.
Negligence— Failure to exercise reasonable care
causing harm.
Strict liability— Legal responsibility for damages or
injury even if you are not negligent.
Class action— A lawsuit brought by one on behalf of a
larger group.
Liability insurance—the type of coverage or insurance
that pays for injuries to other people or damage to
property if the individual insured is responsible for an
accident during the term of the contract.
“Stowers Doctrine” (extracontractual liability):
Holds that a liability insurer that undertakes the defense of
an insured has a duty to act in good faith in settling a
liability claim
Vicarious liability/respondeat superior--
Compensatory damages—damages that compensate the plaintiff
for harm caused by the defendant.
Nominal damages—a small or “token” amount of damages
awarded as a symbol of wrongdoing.
Punitive damages—damages to punish the person committing the
intentional tort.
Battery—Intentional harmful or offensive contact (touching).
Hitting, slap, shove
Assault—Action that puts another person in fear of an immediate
harmful or offensive contact. Contact is NOT required.
Infliction of emotional distress—words or actions intended to
cause extreme anxiety or emotional distress
False imprisonment—Intentional, wrongful, confinement of a
person against his will.
Defamation-oral (slander) or written (libel)—statements that are
false, and which harm a person’s reputation.
Trespass—entry onto real property without owner’s permission
Attractive nuisance—
Nuisance—unreasonable interference with ability to use and enjoy
property.
Injunction—
Conversion—unlawfully exercising control over another person’s
property, such as burglary
Infringement – unauthorized use of a patented or copyrighted
work.
Patent/Copyright—patent protects invesions for 20 years, and
must be granted by US patent and Trademark. Copyrights apply
when a work is created.
Derivative works—
Fair use-Consent—no intentional tort occurs if a person consents to the
conduct (Football)
Privilege—some persons have lawful authority over others, police,
parents, etc..
Essential Vocabulary—Negligence
Negligence—conduct that falls below the standard
established by law for protecting others against
unreasonable risks of harm.
Duty—legal obligation
“Reasonable person” standard—the idealized standard of
how a community expects its members to act. It is based
on how much care a person of ordinary prudence would
exercise in a particular situation.
Cause in fact—one of the elements a plaintiff must prove
in order to establish causation in a negligence suit. It
means that if the harm would not have occurred without
the wrongful act, the act is the cause in fact.
Proximate cause—in negligence law, this concept limits
damages the defendant must pay to only those harms
that are reasonably predictable consequences of the
defendant’s wrongful act.
Essential Vocabulary—Strict Liability
Strict liability—the legal responsibility for damage or injury
even if you are not negligent.
“Unreasonably dangerous” activity—an activity that may be
socially useful or necessary, but their potential for harm
causes those who conduct the activity to be held to the strict
liability standard. (Building demolition).
“Toxic tort”—a lawsuit against a manufacturer of a toxic
substance for harm caused by the manufacture or disposal of
that substance. (p. 262)
Product liability—the legal responsibility of manufacturers for
injuries caused by defective products.
Design defect—
Manufacturing defect—
Intervening/Superseding cause-Marketing defect—264
Foreseeable harm—injury a person could reasonably
predict. A person who leaves a banana peel on the floor
could reasonably predict that someone might slip on the
peel, fall and break a bone. If that happens, the broken
bone is a foreseeable harm.
Contributory negligence—a legal defense in which it is
determined that the plaintiff and defendant share the
fault for a negligence tort. If proven, the plaintiff cannot
recover damages.
Comparative negligence—in a tort suit, a finding that the
plaintiff was partly at fault and, therefore, does not
deserve full compensation for his/her injuries. If the car
accident was 40% my fault, my damages are reduced by
40%.
Assumption of risk—a legal defense to a negligent tort,
whereby the plaintiff is considered to have voluntarily
accepted a known risk of danger.
Misuse—
“Tort reform”—the movement that focuses on changing the
process of settling tort claims. It emphasizes methods other
than going to court or establishes limitations on how much
money the willing party may receive.
Four Major Goals of the Tort Law System
1. Provide fair compensation to injured parties.
2. Efficient resolution of claims.
3. Help deter persons and companies from intentionally
wrongful or careless acts that may injure others.
4. Clearly define responsibilities so that those to whom risk is
allocated can protect themselves (primarily through buying
insurance).
Crimes vs. Torts
1. The same act can be both a crime (public
wrong) and a tort (private wrong). Example:
Taking another’s property can constitute the
crime of larceny and the tort of conversion.
2. There are three main differences:
a. Parties—there is always a government
actor as the prosecutor in criminal law; most tort
cases involve two or more private parties
b. Burden—the civil law standard of
“preponderance of the evidence” applies in tort
cases, not the “beyond a reasonable doubt”
standard for criminal cases
c. Remedies—criminal law leads to
imposition of some punishment (see Sentencing
Options in Chapter 15), whereas the usual
remedy in tort and other civil cases is money.
Types of Damages
1. Compensatory damages compensate for the harm
caused by the defendant. They may include: lost
wages, medical bills, pain & suffering, etc.
2. Nominal damages—symbolic damages that are
awarded when no economic or other real losses
occurred.
3. Punitive damages—damages that are awarded to
punish a defendant who has engaged in malicious or
willfully harmful (intentional) acts.
Allocation of Risk—Insurance
Tort law seeks to identify those who are or
may be responsible for injuries to others. This
is important because a person or company that
knows it is exposed to a risk of loss can buy
insurance to protect against that risk.
Common types of insurance:
1. Auto—liability coverage is required;
coverage for “damage to your auto”
(collision/comprehensive) is optional.
Uninsured motorist coverage pays for damage
to your car when the other driver is at fault but
doesn’t have liability coverage.
2. CGL (comprehensive general liability)—this
is the type of insurance most businesses carry
to protect themselves from suits by customers
and other parties.
3. Workers’ Compensation—this insurance
pays for on-the-job injuries, even if the
employee was negligent or careless. The
employee generally cannot sue the employer
(WC is the exclusive remedy)
Negligence--The Reasonable Person Standard
Negligence consists of four elements:
1. Duty owed
2. Breach (violation) of duty
3. Proximate cause
4. Damages
Whether the defendant breached a duty to the
plaintiff depends on whether the defendant acted
as a “reasonable person” under the circumstances.
Reasonableness depends on: (a) how likely a
certain harm is to occur; (b) the severity of harm if
it does occur; and (c) the burden involved in
avoiding the harm.
Proximate Cause vs. Cause in Fact
In negligence law, the defendant is liable only for injuries that are proximately caused by his actions. “Proximate”
refers to the “closeness” of the link between the defendant’s action and the injury to the plaintiff, including whether
the injury was a foreseeable result of the action. If the harm was not foreseeable, then the action is only a “cause in
fact” and not sufficient to impose liability for negligence.
Example: While waiting for a subway car, John is playing with a yo-yo. The yo-yo strikes Cindy, startling her and
causing her to jump slightly forward, which knocks Bill into Maggie, who falls onto the tracks and is killed by the
approaching car. John’s act of playing with the yo-yo is a cause in fact of Maggie’s death, but probably not a
proximate cause.
According to one report, the “Great Chicago Fire” of
1871 may have been caused “in fact” by a cow kicking
over a lantern in a shed. According to this report, Mrs.
O’Leary was milking the cow and placed the lantern too
close to the animal. The resulting fire destroyed much
of the city.
If true, Mrs. O’Leary was clearly “negligent,” but her
negligence was not the proximate cause of all $192
million in damages.
Scope of Duty—The Palsgraf Case
In perhaps the most famous tort case in history, a
woman named Helen Palsgraf was injured when a
scale fell and struck her on a railway platform.
The scale fell as a result of an explosion that
occurred some distance away. A man carrying a
package wrapped in paper tried to board the train
and began to lose his balance. Two employees of
the Long Island Railroad reached out to help him
and the package he was carrying fell to the
ground. The package contained fireworks which
exploded and caused the scale at the end of the
platform to fall on Mrs. Palsgraf.
Writing for the highest court in New York, Justice
Benjamin Cardozo ruled that Mrs. Palsgraf was
outside any foreseeable “zone of danger” and thus
the railroad employees had not breached any duty
to her.
Contributory vs. Comparative Negligence
In many cases, the defendant’s negligence is not the only proximate cause of an injury. If the plaintiff was also
negligent, how does this affect the result?
Under contributory negligence, any negligence by the plaintiff would completely bar recovery. This meant that the
defendant could be almost totally at fault but the plaintiff could not recover any damages
This was felt to be too harsh, so most states now use comparative negligence, under which the plaintiff’s percentage
of responsibility simply reduces the damages recovered.
Strict Liability—Liability “Without Fault”
In a limited class of cases, tort law imposes liability on a defendant even if there was no intentionally wrongful
conduct (intentional tort) and no negligence. These cases are called “strict liability” cases because liability is
imposed regardless of “fault.” There are three main types of strict liability cases:
1. Ultrahazardous/unreasonably dangerous activities: Actions such as transporting dynamite and demolishing a
building are inherently dangerous and cannot be made completely safe regardless of how much care is used.
Consistent with the goal of allocating risk, the law makes the person or company engaging in that activity strictly
liable for harm caused by the activity.
2. Dangerous animals: Owners are generally strictly liable for injuries caused by wild animals that they have
domesticated, and may also be strictly liable for injuries caused by pets if they knew or had reason to know the pet
was dangerous.
3. Defective products: Manufacturers and sellers of products that cause injuries are usually held strictly liable. This
creates a strong incentive to manufacture products safely and give clear instructions for their use. A product may
defective in one of three ways:
a. Design defect—product is unsafe because of a bad design
b. Manufacturing defect—the design is OK but the product was defectively manufactured
c. Marketing defect—the product did not come with adequate instructions or warnings
Fun with Torts!!
Silly Warnings
Who Will This Guy Sue????????