MGMT 108 (2007) – TORTS – Chapters 6 & 7
I. TORT: Means “wrong” in French. A civil wrong other than a breach of
contract. Reasons for Tort Law….
A. Allocate Losses in society
B. Influence Behavior
II. ELEMENTS OF ANY TORT: All torts have elements. Two are common
among all torts: CAUSATION and DAMAGES
A. DAMAGES:
1. There are three kinds of Damages recoverable in Tort actions?
a. NOMINAL
b. COMPENSATORY
c. PUNITIVE
2. Nominal: No actual harm – symbolic damages. (E.g. Someone runs
across your front yard, TRESPASS occurred, but no actual harm)
3. Compensatory: To restore Plaintiff to position he or she was before the
TORT -- to the extent it can be done with money. Two Kinds of
Compensatory Damages:
a. Special Damages: (Out of pocket expenses) P D, Medical
Expenses, Past and Future Lost Wages.
b. General Damages: Pain, suffering, emotional distress, etc.
Intangible -- what breaking your neck and being unable to move
your head for 3 months worth.
c. Eggshell skull theory: All damages actually caused must be
compensated (no matter how remote).
d. MITIGATION: Plaintiff must take steps to “get better” (e.g. seek
proper medical treatment) to lessen his injuries & damages.
4. Punitive Damages: Meant to punish the Defendant to make sure he or
she doesn't do it again. Conduct must be either negligent or at lease
wanton.
5. JOINT TORTFEASORS: Multiple Defendants, each one is responsible
for 100% of damages. This is called Joint and Several Liability: BUT,
in California you have limitations imposed on this doctrine by
Proposition 51.
B. CAUSATION: Must be a relation between Defendan’t conduct and harm to
Plaintiff:
1. What are two types of Causation:
a. Cause in Fact: Set forth in two ways --(1) But For
(2) A Substantial Factor:
b. Proximate Cause: Foreseeability
III. TYPES OF TORTS:
A. Types are:
1. Intentional Torts
2. Negligence
3. Strict Liability
B. INTENTIONAL TORTS:
1. Assault – Placing someone in fear of an imminent fear of battery
2. Battery - Harmful or Offensive touching. Defenses: Consent,
Defense (self/others)
3. False Imprisonment: Confinement without consent. If K-Mart
questions me for three hours, for a shoplifting I did not commit. Are
they liable? YES What about 20 mins? NO - Retailers may detain
for a reasonable amount of time. Also, if you have an escape route not a False Imprisonment.
4. Intentional Infliction of Emotional Distress - Outrageous behavior
meant to cause extreme emotional distress.
5. Fraud: False statement made with the intent to deceive (scienter) +
reliance by a Plaintiff, who suffers damages.
6. Defamation
a. Types: Libel (written/recorded) and Slander (spoken)
b. Elements:
(1) False Communication
(2) Published (to a 3rd party)
(3) Causes Damages to Plaintiff’s reputation
c. Damages need not be proven if per se violation…
(1) All libel is “per se”
(2) Slander is “per se” if relates to 4 categories
 Sex
 Crime
 Business/Profession
 Loathsome disease
d. Defenses:
(1) Truth
(2) Privilege: (e.g. testifying in court, reporting a crime,
employment setting)
(3) Public figure – no defamation unless “actual malice”
proven
7. Invasion of Privacy
8. Property-related Intentional Torts
a. Trespass – Land: Unlawful entry & interference with Real
Property
b. Trespass – Personal Property (chattel): Interference with use
or damage to personal property.
c. Conversion: Taking someone’s property (with intent to keep)
d. Nuisance: Interference with use or enjoyment of property.
IV. STRICT LIABILITY: Defendant liable regardless of intent or fault.
A. Types:
1. Abnormally Dangerous Activity: Dynamite, toxic waste transport, etc.
3. Statutorily-created: Worker's Comp, Environment, Sexual
Harassment
4. Products Liability:
a. Three types of “Causes of Action”
(1) Negligence
(2) Strict Liability in Tort
(3) Breach of Implied Warranty
b. Elements of Strict Liability in Tort
(1) Defendant is a merchant who sold the product
(2) Product has DEFECT in…
(a) Design
(b) Manufacture
(3) Unreasonably Dangerous to users/consumers, etc.
(4) Largely Unchanged
(5) Causes Damages to Plaintiff
c. Defenses:
(1) Contributory/Comparative Negligence applies
(2) Assumption of the Risk
(3) Product Misuse
V. NEGLIGENCE: What is it?
(CONDUCT THAT IS CARELESS)
A. Elements are as follows:
1. DUTY: Defendant must have a duty to injured party:
a. Drivers to other drivers, manufacturers & retailers to
consumers, homeowners & business owners to their
guests, neighbors to neighbors, corporate directors &
officers to the corporations & shareholders, etc.
b. NOTE: Sometimes NO DUTY -- Passerby to drowning or
injured person; doctor to injured person (BUT, once acts,
then owes a duty to be careful)
c. Law imposes greater duties to professionals or those in
other special relationships:
--Accountant, Lawyer, Doctor, Real Estate Broker,
Architect
and their clients/patients.
--Parties to a contract (bad faith)
--Sellers & buyers of real property
2. BREACH: Just because you owe a duty, doesn't mean a Plaintiff
is entitled to damages
--- duty must be breached:
----drive unsafely, sell a defective product, leave spilled milk
on
walkway, let your water drain onto your neighbor's
property,
make a negligent investment for your company, etc.
3. CAUSATION
4. DAMAGES
B. DEFENSES TO NEGLIGENCE: Affirmative Defenses
1. Contributory Negligence
2. Comparative Negligence
3. Assumption of the Risk
C. RES IPSA LOQUITUR: What is it? Helps Plaintiff to establish
negligence…ELEMENTS:
1. Elements:
a. Negligent conduct has occurred.
b. Agent/instrumentality under D's exclusive control
c. No contributory negligence by Plaintiff
2. Most typically used in Medical Malpractice or Products cases: P.
under surgery, or the exploding coke bottle.
3. BUT, BUT , BUT: Result is a SHIFT IN BURDEN OF PROOF to
Defendant. Defendant can still get out of paying Plaintiff by proving
no negligence on Defendant’s part.
C. NEGLIGENCE PER SE: Defendant Violated Statute - automatically
liable to Plaintiff.
D. PREMISES LIABILITY - Notice (actual or constructive) of a dangerous
condition on the premises.
F. ATTRACTIVE NUISANCE: If likely to attract children to dangerous
condition: Defendant will be liable. (e.g. unfenced pool)