PARALEGAL SERIES
Chapter 7
Torts
Introduction to Paralegal Studies
A Critical Thinking Approach
6th Edition
Currier and Eimermann
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Torts
The risk reasonably to be perceived
defines the duty to be obeyed.
Justice Benjamin Cardozo
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Chapter Objectives
• Explain how intentional torts differ from negligence and strict
liability torts.
• List the elements of the prima facia case and common defenses for
the torts of battery, false imprisonment, and defamation.
• Apply the elements of negligence to a fact scenario.
• Describe the history and development of product liability law.
• Explain the function of compensatory, punitive, and nominal
damages.
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What is a Tort
Harm to a person or a person’s property
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Degrees of Fault
HIGH
Intentional Act
MEDIUM
Negligence
LOW
Strict Liability
NONE
No Liability
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Intentional Torts
When someone intends to harm a
person’s body, reputation, or emotional
well-being
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Assault
Assault is:
1. An intentional act
2. that creates a reasonable apprehension
of
3. an immediate harmful or offensive
physical contact.
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Battery
Battery is:
1. An intentional act
2. that creates a harmful or offensive
physical contact.
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False Imprisonment
False imprisonment is:
1. An intentional act
2. that caused confinement or restraint
3. through force or the threat of force.
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False Imprisonment
Shopkeeper can defend by showing:
• Restraint of shoplifter justified
• Detained shoplifter for probable cause
and for a reasonable time and in a
reasonable manner
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Defamation
Defamation is the:
1. Publication
2. of false statements
3. that cause harm to reputation.
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Defamation per se
Defamation per se remarks include:
1. That someone has a loathsome
communicable disease,
2. That someone committed business
improprieties
3. That someone has been imprisoned for a
serious crime
4. That an unmarried woman is unchaste
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Defamation of Public Figures
Under New York Times Co. v. Sullivan rule
public figures must show:
1. Publication
2. of false statements
3. that cause harm to reputation and
4. made with actual malice.
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Defenses to Defamation
Defamation defenses include:
• Truth
• Privilege
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Invasion of Privacy
Invasion of Privacy includes:
• Disclosure
• Intrusion
• Appropriation
• False light
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Intentional Infliction of
Emotional Distress
To prove intentional infliction of
emotional distress must show:
1. An intentional act
2. that is extreme and outrageous
3. and causes
4. severe emotional distress.
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Harm to Person’s Property
Harm to person’s property includes:
• Trespass to land
• Trespass to personal property and
conversion
• Defenses to torts against property
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Other Intentional Torts
Other intentional torts include:
• False arrest
• Malicious prosecution
• Abuse of process
• Fraud/Intentional misrepresentation
• Interference with a contractual
relationship
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Negligence
To prove negligence need to show:
1. The defendant owes a duty to the
plaintiff to act reasonably, and
2. the defendant must have breached that
duty
3. thereby causing
4. the plaintiff harm.
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Causation
•
•
•
•
“But for” standard
Actual cause or cause in fact
Proximate cause
Intervening cause
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Defenses to Negligence
Defenses to negligence include:
• Contributory negligence
• Assumption of the Risk
• Comparative negligence
• Immunities
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Reckless Behavior
Defined as:
• Gross negligence
• Willful or wanton behavior
• Recklessness
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Ultrahazardous Activities
Ultrahazardous six factors are:
a) Existence of a high degree of risk of some harm to person,
land or chattels of others;
b) Likelihood that the harm that results will be great;
c) Inability to eliminate risk by reasonable care;
d) Extent activity not a matter of common usage;
e) Inappropriateness of activity to the place carried on; and
f) Extent value to community outweighs dangerous attributes.
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Strict Liability
• Liability without having to prove fault.
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Products Liability
Three theories for products liability claim
based on negligence are:
• Defect in product caused by failing to use
reasonable care in manufacturing process
• Defect in product caused by negligent
design
• Negligent failure to warn
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Products Liability
Where cannot show specific act of
negligence but product defective and
defect caused an injury plaintiff can rely
on:
• Warranty theory
• Strict liability theory
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Products Liability
Caveat Emptor
No liability
Contract/Breach of
Warranty
Liability unless
disclaimed or lack of
privity of contract
Negligence
Liability if can prove
unreasonable behavior
Strict Liability
Liability if sold defective
product that was
unreasonably dangerous
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Remedies
• Injunction
• Compensatory damages (actual
damages)
• Punitive damages
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