Torts
Torts Overview
1. D commits an act in a manner that the law deems wrongful and injurious towards another
so that the other has a right to legal relief
2. D is at fault, either because he intends harms or takes unreasonable risks
3. 3 Categories
1. Negligence – D didn’t intend to bring about but acted carelessly
2. Intentional torts – D intends to being about a particular result (battery, assault, false
imprisonment, IIED)
3. Strict Liability – D held liable even though he didn’t intend to bring about the
undesirable result and even though he behaved in a careful manner (trespass,
ultra hazardous activities)
Torts Theory
Corrective Justice – tort law system is an instrument that allows a person to balance the scales
once he has been injured
1. A wronged/hurt B, so A should be punished. Allows a person to have a legal right to be
compensated for the injury they’ve suffered as a result of another’s actions. Rebalancing
the scales.
2. A means of correcting wrongs between people
3. Cares about the states perspective/interest in the suit
Deterrence/Efficiency – Tort law creates rules that encourage people to act with just the right
amount of care and caution
1. Deter people from doing things they shouldn’t/can’t do. Shouldn’t be over cautious but
should take cost-effective measures to reduce risk (hand formula)
2. Trying to maximize resources and the betterment of society/public benefit
3. Don’t like rigorous but-for test
Compensation – World is a complex place and people frequently get injured through no fault of
their own
1. Allows those who’ve been injured through no fault of their own to be made whole
2. Tort law as an insurance mechanism; spreading risk
3. Don’t like rigorous but-for test
Negligence - Overview
Elements of prima facie case (proven by a preponderance or evidence)
1. Injury – person or property must be harmed (Jury to decide)
2. Duty – owed to P or a class of persons like P to take care to not cause this kind of injury
(Judge to decide)
3. Breach – D breached his duty (Jury to decide)
4. Causation – breach was actual and proximate cause of injury
1. But-for cause (cause-in-fact/factual cause) – as a matter of historical fact, was the
breach of duty a necessary link in the chain?
2. Proximate cause – not just enough to show D’s breach was a necessary link in the
chain, type of injury expected, foreseeable, within scope of risk?
Worker’s Comp
Don’t have to 1) show fault or 2) more likely than not. P win more easily but payment is low so
usually sue others besides employer to get more than just comp
Injury – decided by jury
1. Was there actual harm?
1. Can be shown by:
1. Personal injury
2. Property Damage – P gets cost of repair OR fair market value
3. Economic – not always recoverable – only when attached to
physical/property injury
4. Emotional – freestanding not always recoverable
Punitive Damages – extra damages beyond actual damages are available if D’s behavior was
wonton and willful, reckless or malicious
1. Did plaintiff attempt to mitigate the harm?
1. P must not act in a manner that makes damages worse, ie not going to the doctor
to get well. D not liable for damages where P didn’t mitigate
Duty – decided by judge
General duty of reasonable care – unqualified duty
1. Unqualified – duty owed to another whenever a person “of ordinary sense” would
recognize that careless conduct on his part would create a reasonably foreseeable
“danger of injury to person or property of another”
2. Macpherson Rule – Manufacturer of articles that are not inherently dangerous but may
become dangerous when improperly constructed owes a duty of care to anyone beyond
the purchaser when:
1. Injury would occur from careless or improper manufacturing
2. Danger shared by people other than the buyer
3. No opportunity for inspection by 3rd party
(Macpherson v. Buick NY 1916)(Rejected privity from Winterbottom, who reasoned no
duty without contractual relationship)(Cardozo argues that duty exists irrespective of
contract/privity)
1. There must be knowledge of probable (not just possible) danger and that in the normal
course of events, danger will be shared with others than just buyer.
1. Reasonable Foreseeability – whether a reasonably prudent person would have
anticipated that an injury was likely to result from the performance or nonperformance of
an act. (Mussivand v. David OH 1989 – STD case, duty to foreseeable sexual partners)
3 Qualified Duties of Care
1. Affirmative Duty
Generally, no duty to aid rule EXCEPT
1. Voluntary undertaking (must be non-negligent)
1. Failure to exercise care increases harm or reliance on the undertaking
2. Good Samaritan law modifies common law – immunity for voluntary undertaking
rescue, usually only applies to off duty professionals.
2. Peril to Plaintiff is caused by Defendant, even if P not negligent, D must provide
reasonable help (misfeasance).
3. Special relationship (ie teacher-student, business-client, school-student, common carrier,
innkeeper (must have reason to know of P’s peril) landlord. However friendship is a
borderline one. Courts unwilling to take a hard stance)
1. § 314A 2nd Rst Torts says:
1. Duty to protect against unreasonable risk of physical harm
2. Give first aid after it knows or has reason to know they are ill or injured and
to care for them until they can be cared for by others
Note: A person who owes a duty to aid is liable for the additional injury suffered as a result
of the failure to aid
A. Affirmative duty or duty-to-rescue cases
1. Nonfeasance – general rule of “no duty”; failing to act to help where D has not caused
the peril, not negligence, no duty
1. Osterlind v. Hill MA App. Ct. 1928) Lessor of boat has no legal duty to refrain from
renting to and rescuing an intoxicated person. D owned no duty to P.
2. Misfeasance – negligent conduct caused the peril. General duty to take care against this.
If you caused the peril, you must help
3. Business have a duty of reasonable care to someone (special relationship) if they are an
invitee, regardless of whether the business had anything to do with the injury.
Baker v. Fenneman – Taco Bell customer faints – business has duty of reasonable care to
someone if they are invitee,
1. Duty Test: 1. Relationship between parties 2. Reasonable foreseeability of harm to person
injured, 3. Public policy concerns (business benefits from customers)
B. Policy: Why don’t we require Duty of Care from everyone? Slippery slope, would have to go to
court to defend actions, jury would likely convict, hindsight bias, emotional factors, immoral to
force people to do their moral duties, respect for individual autonomy, what about people that
freezup?
2. Premises Liability – Rules v. Standards
1. Rules: might have errors standard don’t
1. Invitee (invited for business/mutual benefit) – make premises safe and warn of any
danger
2. Licensee (visiting a friend’s home) – warn of any danger
3. Trespasser (no right to be there) – refrain from willfully or wantonly injuring him;
1. Exceptions:
1. duty to children (if it’s reasonably foreseeable that child will be
there, must take care not to injure them)
2. Constant trespassers – if owner knows people always trespass
across land as shortcut, etc, has duty to warn them of danger
2. As soon as invitee leaves area he was invited to for his own curiosity and w/o owner’s
permission, he is a trespasser; so owner has no duty (Leffler v. Sharp Miss App Ct 2004
– drunk, when through hotel window onto roof)
3. Standards – everyone gets reasonable care. Costly. Jury not always right. Some JX have
done this
3. Pure Economic Loss
1. No general duty for free standing economic harm
2. Purely economic injury occasioned by interruption of commerce is not recoverable in a
negligence action absent damage to person or property or a special relationship
between parties. (Aikens v. Debow WV 2000 – bridge downed that led to Econo-lodge)
3. Exceptions where you can recoup:
1. Special relationship (professional (accountant, lawyer) or otherwise)
2. Particularly foreseeable plaintiff (People Express decision)
3. Quasi property interest (ie fisherman in golf during oilspill)
Policy: Justification: proof problems; proportionality/floodgates argument; more important to
protect person/property than $