CHAPTER 1
Tort law is the set of legal rules establishing liability and compensation for personal injury and death
caused by the intentional or careless conduct of an actor. Tort law provides the legal rules for shifting all
or part of the economic and non-economic losses of injured accident victims to the persons and
companies causing injuries through their misconduct
The range of torts is as broad as human experience and includes such wrongful conduct as
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negligence (personal injury law for unintentional harm),
intentional torts (e.g., assault, battery, trespass to land),
products liability (defective products),
abnormally dangerous activities liability (e.g., blasting, aerial pesticide spraying),
nuisance (e.g., air, water, and noise pollution),
defamation (libel and slander),
privacy invasion (private area intrusion and personal autonomy interference), and
fraud (misrepresentation).
Accidents are unintentional events resulting in injuries, death, and property damage, and can occur with
or without the fault of one or more of the parties involved. The fact that we describe harm causing
events as accidents does not mean, as the term “accident” implies, that they are unpredictable and not
preventable. To the contrary, they are often quite predictable and preventable
The Culpability Spectrum in Tort Law
The universe of harm caused by human conduct can be divided into two worlds: intended harm and
unintended harm. Culpability for harm caused to others involves a spectrum running from fault-free
conduct at one end to intentional misconduct on the other end. Negligence and recklessness fall in the
middle of the spectrum.
The nature of the proof required to establish a successful claim and the types of damages that are
available vary with the applicable culpability standard
Intentional torts and recklessness require proof of mental states of mind by the defendant — levels of
willfulness, e.g., for an intentional tort, the plaintiff must prove a purpose or desire to invade the
protected interest of another. Recklessness requires a showing of conscious disregard of a high degree
of risk of injury. Negligence, as we shall learn, is premised on a standard of what a reasonable person's
conduct would have been under the circumstances and breach of the standard is proven without
reference to the defendant's mental state. Negligence holds a defendant to an objective reasonable
person standard. Products liability aside, the strict liability standard has no culpability requirement; it
only requires proof of causation between the activity and the harm
Since recovery for unintentional harm in tort is generally available only on a showing of fault (except for
the narrow category of situations where strict liability is used), there is a high level of accidents with
resulting harm or death where no one is at fault (we might call these accidents “fate”) or situations
where there is no liability in tort.
A-Intended Harm: Intentional Torts
B-Unintended Harm
1-Negligence
2-Recklessness
3-Strict liability-no fault liability.
Negligence: Virtually all types of accidents are encompassed under negligence as the basis of liability,
including auto accidents, slip and fall cases, and medical malpractice. Negligence is typically premised on
unreasonable conduct that creates foreseeable risks of harm. Importantly, the negligence concept of
fault is much broader than morally culpable conduct. Negligence today is evaluated against a social
norm based on what a reasonable person would have foreseen and done under the circumstances.
Juries play an important role in applying the reasonable person standard to the facts of accident cases
Virtually all types of accidents are encompassed under negligence as the basis of liability, including auto
accidents, slip and fall cases, and medical malpractice. Negligence is typically premised on unreasonable
conduct that creates foreseeable risks of harm. Importantly, the negligence concept of fault is much
broader than morally culpable conduct. Negligence today is evaluated against a social norm based on
what a reasonable person would have foreseen and done under the circumstances. Juries play an
important role in applying the reasonable person standard to the facts of accident cases
Recklessness- Recklessness is a more culpable type of fault than negligence but less culpable than
intended harm. Recklessness is usually invoked in accident situations where the defendant exercised a
conscious disregard of a high risk of serious harm and falls somewhere between intentional misconduct
and negligence on the culpability
Note that recklessness requires proof of a mental state of mind
Strict liability-no fault liability- for example, is used for “abnormally dangerous activities,” such as
dynamite blasting, crop dusting, pesticide spraying, and storage and transportation of hazardous wastes.
Strict liability is also applied for injuries resulting from product liability manufacturing defects, and
occasionally in circumstances where a special criminal statute has been violated
The Functions and Goals of Negligence Law
Generally, an employer is liable for the negligence or carelessness of its employees that occurs within
the scope of employment. Many courts today also extend vicarious liability for employee intentional
torts to an employer if the misconduct is reasonably connected with the employment. Where the
employee's purpose, for example, is to further the interest of the employer solely or partially, however
misguided, the employer can be vicariously liable for intentional torts.
Even if an employee's intentional misconduct is not within the scope of employment, an employer may
be liable for its own direct negligence if the harm to a third party was caused by the employer's failure
to exercise reasonable care in selecting, training, supervising, or otherwise controlling the employee
Punitive Damages. Punitive damages are a monetary amount imposed on a defendant who is found to
have engaged in particularly egregious, highly culpable, conduct (intentional misconduct or recklessness)
causing harm to others. Punitive damages serve to punish and deter such conduct in the future by the
defendant and others
Liebeck v McDonalds Other commentators have stressed the significance of two factors: 1) the very
serious risk of third degree burns within seconds from coffee at 180 degrees which most consumers do
not appreciate, and 2) that the McDonald's Corporation had actual awareness of the risk from over 700
complaints and was unwilling to consider remedial safety measures.
Affirmative Defenses - are independent legal grounds for denying or limiting a plaintiff's claim. Thus,
even if the plaintiff can produce sufficient evidence to raise a jury question on each of the requisite
elements of a negligence claim (lawyers say “established a prima facie case”), there may be other
independent reasons for precluding or reducing the claim. The statute of limitations is a good example
of an affirmative defense. Ordinarily a plaintiff must file her claim within the time limits set by statute to
have a right of recovery. Another example of an affirmative defense is contributory or comparative
negligence. A plaintiff's own unreasonable conduct (contributory negligence) in getting injured is
ordinarily an affirmative independent defense barring a claim or reducing the recovery. Defendants
usually have the burden of pleading and proving affirmative defenses.
Recklessness. To establish recklessness, the plaintiff must prove two elements beyond the negligence
requirement of an unreasonable risk of harm, namely:
(1) that there was a high probability of risk or a risk of very serious harm, and
(2) that the defendant was conscious of the risk or potential serious harm and acted in disregard of the
safety of others.
Vicarious and Direct Liability. Employers are generally liable for the negligence of their employees
occurring during the scope of their employment. Thus, a trucking company is liable for the damages
caused by the negligent driving of its truck drivers while on the job. This is called the doctrine of
respondeat superior (“let the employer answer for the wrongs of the employee”), or more commonly,
“vicarious liability.” Vicarious liability is an important doctrine in tort law, and is, in essence, a form of
strict liability. Even an employer who instructs its truck drivers to obey traffic laws is nonetheless liable
for injuries caused by drivers who violate traffic laws and cause injuries to third parties. Under vicarious
liability, the fault of the employee (the traffic violation) is in legal effect imputed to the employer.
Where an employer is vicariously liable, the employee, if named as a defendant, can also be
In the coffee spill example, the owner and operator of the restaurant (the franchisee), is actually liable
under two theories: 1) “direct negligence” and 2) vicarious liability. First, the franchisee can be liable for
its “direct negligence.” Since the franchisee required its employees to brew and serve the coffee at the
high temperature, it can be found “directly negligent” for that conduct. Under the direct negligence
theory, the fault of the employer — the careless conduct of the employer — is the basis of the potential
liability. Second, the restaurant owner and operator can be found vicariously liable. Since the employees
served the hot coffee to Ms. Liebeck [25/26] in the scope of their employment, and if the serving of the
hot coffee is found to be negligent, the owner is subject to vicarious liability. Under the vicarious liability
theory, the fault or lack thereof of the employer is not the focus; the employer can be held liable for the
fault of the employee occurring in the scope of employment. The employer's fault is imputed by law to
the employer
Personal injury damages are a critically important aspect of most tort claims. There are two overall types
of damages,
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1-compensatory
2- punitive
The general purpose of compensatory damages in tort is to place the injured person back into the
position he or she was in before the accident. The goal is to make the plaintiff “whole.”
Types of Compensatory Damages — Post (Accident to Trial) & Future Losses
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1. Medical Expenses (Health Care & Rehabilitation Costs)
2. Employment Earnings Losses (Lost Income, Future Advancement Increases & Benefits; Loss of
Household Services)
3. Pain & Suffering (Physical Pain, Mental Suffering & Emotional Harm
Important Damages Considerations
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Life Expectancy
Work-Life Expectancy
Inflation
Reduction to Present Value
Race & Gender Concerns
Property Damage
Attorney Fees
The Tort Law Litigation Process
Superior Knowledge. Some jurisdictions have an additional res ipsa loquitur element that requires the
plaintiff to show that the defendant has greater knowledge about what caused the harm than the plaintiff
Defendant's Options in a Res Ipsa Loquitur Case.
Defending a res ipsa case can be difficult. There are two options available to defendants in cases where
plaintiffs assert res ipsa loquitur. Can you identify them? First, defendants can try to defeat the existence
of res ipsa loquitur by showing that one of the res ipsa elements cannot be established by the plaintiff.
For example, defendants can argue that the harm-causing event happens absent negligence or that the
party being sued did not have requisite control over the harm-causing instrumentality. Second,
defendants can show that they exercised due care. Here, the defendants are trying to overcome the
inference of negligence that the jury is entitled to draw from the res ipsa loquitur elements. Evidence of
the defendant's safety precautions can backfire, however. Sometimes, the more safety precautions a
defendant demonstrates, for example, a soda pop manufacturer that outlines its extensive quality control
procedures to prevent anything from getting into the bottles, the more it tends to indicate that with all
that safety, someone must have been careless at the factor
The Defendant's Responsibility — The “Control” Element
In addition to having to show that the injury the plaintiff suffered was probably the result of negligence,
the plaintiff must also connect the defendant to the harm-causing event. As the New Jersey Supreme
Court put it in Eaton, the plaintiff has to show that “the instrumentality or agent which caused the accident
was under the exclusive control of the defendant.” (Emphasis added.) To the extent courts interpreted
this exclusive control element literally, the plaintiff had substantial challenges in getting to a jury on the
basis of res ipsa loquitur.
Exclusive Control Is Not a Requisite of Res Ipsa Loquitur. While true exclusive control or custody is no
longer a requisite element of the doctrine, proof of such [156/157] exclusive control or custody by a
defendant is very helpful proof of the defendant's likely negligence. There are, however, other ways of
showing that the defendant's negligence was the likely cause of the accident without being able to show
exclusive control
Elements of Res Ipsa Loquitur
1. Inference that Someone Was Negligent
The accident is of a kind that ordinarily does not occur in the absence of someone's negligence.
Proof:
 a. Facts of accident
 b. Common knowledge
 c. Common sense
 d. Experts
2. Inference that Defendant Was Negligent
The apparent cause of the accident is such that the defendant would be responsible for any negligence
connected with it.
Jury must be able to find that more likely than not the defendant's negligent conduct or omission caused
the accident.
Proof:
 a. Evidence of the defendant's control, if possible
 b. Evidence that negligence likely occurred when instrumentality was under the control of the
defendant
 c. Disprove possible negligence of third parties
 d. Remove the plaintiff as a possible contributor (or at least less than 50% responsible in
comparative negligence)
The Standard of Care in Professional Malpractice
Negligence law treats professionals differently than “non-professionals.” In most negligence cases, you
will recall, custom evidence is relevant but not conclusive to [164/165] the jury's determination of breach
of duty. For professionals — such as doctors, lawyers, and accountants — custom plays a much more
significant role: custom sets the standard of care, and deviation from that custom constitutes breach of
duty. In other words, custom evidence is conclusive in establishing the standard of due care.
In its jury charge, the court instructed the jury on general concepts of professional negligence, the
standard of care, foreseeability and proximate cause. Over appellants' objections, the court also gave the
so-called hindsight instruction:
In a medical malpractice action, a defendant cannot be found negligent on the basis of an assessment of
a patient's condition that only later, in hindsight, proves to be incorrect as long as the initial assessment
was made in accordance with reasonable standards of medical care. In other words, the concept of
negligence does not include hindsight. Negligence consists of not foreseeing and guarding against that
which is probable and likely to happen, not against that which is only remotely and slightly possible.
To establish professional medical negligence the evidence presented by the patient must show a violation
of the degree of care and skill required of a physician. [Cit.] Such standard of care is that which, under
similar conditions and like circumstances, is ordinarily employed by the medical profession generally.
[Cits.]
General negligence law holds that negligence may be established where it is shown that “by exercise of
reasonable care, the defendant might have foreseen that some injury would result from his act or
omission, or that consequences of a generally injurious nature might have been expected.”
A common articulation of the standard of care for a doctor states that a physician must act with the degree
of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average
member of the profession practicing in the field in the relevant geographic community. In that vein, the
Smith majority notes that the medical malpractice standard of care “is that which, under similar conditions
and like circumstances, is ordinarily employed by the medical profession generally
For the most part, the requirement that physicians comply with the customary practice provides a rather
exacting standard, though not always
A doctor's compliance with any acceptable method protects her from malpractice liability. Indeed, the
defendant may be entitled to an instruction informing the jury that where alternative methods can be
used, the defendant's selection of one over the other is not evidence of negligence.
In the overwhelming majority of malpractice cases, the plaintiff has to provide expert testimony to show
both the customary practice and [168/169] the professional defendant's deviation from that customary
practice. As one court explained: “The rationale for requiring expert testimony in medical malpractice
cases is that a doctor is not required to always provide a correct diagnosis or positive result, but merely
to conform to the accepted degree of skill, care, and judgment required of a reasonable physician.”
Without an expert, the plaintiff typically cannot proceed with the malpractice action. Therefore, who may
serve as an expert takes on great importance in the malpractice context.
The early physician standards limited the relevant custom to be followed to doctors in the same locality,
which gradually expanded to a “same or similar locality” test. The “same or similar locality” test has been
criticized as unduly limiting the pool of potential experts, potentially keeping the standard of medical
practice sub-par, and inviting cumbersome debate about what communities were similar enough to satisfy
the rule. On the other hand, there is concern that employing a broader geographical focus may be unfair
as rural doctors often have access to less sophisticated medical tools than their urban counterparts. Some
states still employ the same or similar locality test, accordingly (noting that a physician must use the
“degree of skill and learning ordinarily possessed and used by members of [his] [her] profession in good
standing, engaged in the same (type of service) [or] (specialty) in the locality in which [he] [she] practices,
or in a similar locality.”).
In order to be a qualified expert, the expert need not necessarily practice in the same area of medicine as
the defendant. Courts have typically held that it is sufficient for the expert to show that she has knowledge
of [169/170] the customary practice in the area of medicine practiced by the defendant in the relevant
geographical area, even if that is not her own practice area. Thus, a doctor who is board-certified in
internal medicine and infectious diseases can testify against a surgeon if she has the requisite knowledge
of the customary practices among surgeons or if she can show that the customary practices among
surgeons are the same as they are for those who practice in the expert's area
The Role of Res Ipsa Loquitur in Medical Malpractice Cases. As we saw earlier in Ybarra v. Spangard, §
2.07[B][1], above, res ipsa loquitur may arise in the context of medical malpractice. Most courts agree
that a malpractice plaintiff should be permitted to try to prove res ipsa loquitur through expert testimony.
In cases that do not give rise to the “common knowledge” exception, expert testimony is often essential
to show that the harm the plaintiff-patient suffered typically does not occur absent malpractice
The res ipsa loquitur doctrine requires the harm to be of a kind that ordinarily does not happen absent
negligence. The California Supreme Court explained some time ago: “The fact that a particular injury
suffered by a patient as a result of an operation is something that rarely occurs does not in itself prove
that the injury was probably caused by the negligence of those in charge of the operation. . . . To permit
an inference of negligence under the doctrine of res ipsa loquitur solely because an uncommon
complication develops would place too great a burden upon the medical profession and might result in
an undesirable limitation on the use of operations or new procedures involving an inherent risk of injury
even when due care is used. Where risks are inherent in an operation and an injury of a type which is rare
does occur, the doctrine should not be applicable unless it can be said that, in the light of past experience,
such an occurrence is more likely the result of negligence than some cause for which the defendant is not
responsible
The Doctrine of Informed Consent
The foundation for the consent requirement applicable to medical practitioners is the tort law of assault
and battery — the legal doctrine protecting the right of each individual to be touched only when and in
the way authorized by that individual. A landmark case on consent cites as the “root premise” of consent
law the oft-quoted statement of Justice Cardozo that “Every human being of adult years and sound mind
has a right to determine what shall be done with his own body and a surgeon who performs an operation
without his patient's consent commits an assault for which he is liable in damages.
Medical and surgical procedures that involve touching a patient's person, even the simplest manipulation
of a limb, must be properly authorized or the person performing the procedure will be subject to an action
for battery. The obvious corollary is that, absent special circumstances, a competent individual has a right
to refuse to authorize a procedure, whether the refusal is grounded on doubt that the contemplated
procedure will be successful, concern about probable risks or consequences, lack of confidence in the
physician recommending the procedure, religious belief, or mere whim. . .
Under the professional standard, the physician is required to disclose those risks which a reasonable
medical practitioner of like training would disclose under the same or similar circumstances. In most cases,
the questions of whether and to what extent a physician has a duty to disclose a particular risk are to be
determined by expert testimony which establishes the prevailing standard of practice and the physician's
departure from that standard.
On the other hand, under the lay standard the physician's disclosure duty is to be measured by the
patient's need for information rather than by the standards of the medical profession. Unlike the
professional standard, the lay standard does not ordinarily require expert testimony as to medical
standards to establish the physician's duty to disclose; rather, it is for the jury to determine whether a
reasonable person in the patient's position would have considered the risk significant in making his or her
decision.
Although not referred to by name, this instruction applied the so-called prudent patient or materiality of
the risk standard in determining what risks must be revealed to the patient. Under this standard a
physician must disclose those known risks which would be material to a prudent patient in determining
whether or not to undergo the suggested treatment.
Notwithstanding the standard applied, a set of guidelines, proposed in Lasky's Hospital Law Manual is
helpful to the physician and attorney. Over the 20-odd years since the term informed consent came into
usage in the medicolegal context, courts have been developing, on a case-by-case basis, a list of items
requiring disclosure. Stated in simple, generic terms, the list includes: (1) diagnosis (i.e., the patient's
condition or problem); (2) nature and purpose of the proposed treatment; (3) risks and consequences of
the proposed treatment; (4) probability that the proposed treatment will be successful; (5) feasible
treatment alternatives; [and] (6) prognosis if the proposed treatment is not given. Obviously, the
applicability of each of the items on the list may shift from case to case, depending upon the particular
facts. Nevertheless, the list has value as a disclosure checklist for the practitioner as well as a starting
point for closer discussion of the several items.
Applying the facts of the instant case it is the plaintiffs' allegations that the doctor failed to inform her
about the effectiveness of tubal ligation or the fact that contraceptives would be required to prevent
future pregnancies. Although the plaintiff concedes that information about the operation was provided
to her by a nurse, she alleges that the ordinary procedure requires that a doctor explain the operation
and its effects. See Hall. [Hall implied that] . . . physicians may incur liability for failure to obtain informed
consent, where one delegated to obtain such consents falls below objectively ascertained acceptable level
of expected care. The doctor defendant denied a failure to inform. Thus, a genuine issue of material fact
exists which must be resolved.
The informed consent theory of recovery in this case, however, is different from the alleged negligent
surgical procedure theory. No medical expert testimony is needed to prove what communications
transpired between doctor and the patient.